Bilateral Investment Treaties 1995-2006: Trends in by United Nations

By United Nations

The variety of bilateral funding treaties (BITs) among nations elevated from somewhat over 1,000 to greater than 2,500 among 1995 and 2006. the current learn offers an in-depth research of the new evolution of sizeable provisions present in BITs. The examine makes use of a variety of examples from BITs concluded among 1995 and 2006 to help its research.

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Sample text

With respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of covered investments, each Party shall accord treatment no less favorable than that it accords, in like situations, to investments in its territory of its own nationals or companies (hereinafter "national treatment") or to investments in its territory of nationals or companies of a third country (hereinafter "most favored nation treatment"), whichever is most favorable (hereinafter "national and most favored nation treatment").

However, the apparent simplicity of this formulation is misleading since a foreign investor may exercise rights of ownership in a direct or indirect manner. Foreign investment is often carried out through complex mechanisms entailing multiple layers of ownership. A huge number of shareholders may be co-owners of multinational enterprises, which have a vertical structure extending over several countries. How does international investment law deal with the legal issues derived from such complex business realities?

From the perspective of the host countries, this would mean that the obligation to grant foreign investment fair and equitable treatment would not significantly impair the flexibility and discretion of Governments to regulate and to pursue their public policy objectives. 39 The outcome of applying the fair and equitable standard under the semantic approach could be very different. In this view, fair and equitable treatment would be understood as a standard of equity or fairness based on the “plain meaning” of the term.

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