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Part V International Trade Law Development Beyond the WTO, Ch.32 Investment Law’s Monstrous Reform

Rodney Neufeld

From: The Oxford Handbook of International Trade Law (2e) (2nd Edition)

Edited By: Daniel Bethlehem, Donald McRae, Rodney Neufeld, Isabelle Van Damme

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 16 July 2024

Subject(s):
Expropriation

Bilateral investment treaties (BITs) and investment chapters in FTAs promote investment and enhance investor protection through substantive obligations, including national treatment, MFN treatment, fair and equitable treatment (FET), and the prohibition against expropriation. These obligations are often enforceable directly by investors through investor-State dispute settlement (ISDS). Despite the loud criticism of investment law, and more particularly, ISDS, States have not jettisoned the obligations or ISDS. As a review of State practice shows, new treaties contain important reform elements that clarify the meaning of vague concepts, including treatment ‘in like circumstances’, FET, and indirect expropriation. To a lesser extent, States are adopting reform elements that limit or even prevent access to ISDS. At the same time, States are eagerly pursuing procedural reform in ICSID and UNCITRAL. It remains to be seen whether these efforts will result in a new court or appellate mechanism, or whether they will contribute to the multilateralization of investment law, but even without it, the previously fragmented web of BITs are slowly being replaced by investment chapters in regional FTAs with much clearer obligations.

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