Elgar International Investment Law series
Chapter 2: International investment law and environmental protection
At first glance, the image that best captures international rules on foreign investments is that of a patchwork. A multilateral investment treaty does not exist, nor is it planned on any international agenda, and the only multilateral conventions on foreign investments concern procedural or functional issues. The role of customary rules is virtually fading, whereas a vast and growing number of bilateral and regional treaties, variously setting obligations to protect foreign investor rights, characterize the current international panorama. Each bilateral investment treaty (BIT) and free trade agreement (FTA) chapter on foreign investments creates a formally autonomous regime, and international dispute settlement procedures are equally fragmented, with many distinct arbitral tribunals being established to solve single investor–state disputes. Within this fragmented scenario, however, scholars increasingly refer to ‘international investment law’ (IIL) as a unified concept. It is considered a part or field of public international law and is sometimes spoken of as a true legal regime, just as one might speak of the ‘law of the sea’ or ‘international trade law’. In so arguing, advocates of this view rightly depend on the observation that most BITs and regional agreements share very similar features, both in the type of legal category (e.g. expropriation or fair and equitable treatment) and the concrete models of regulation (e.g. the standard of market value to assess compensation for expropriation). Scholars further rely on the fact that arbitrators tend to interpret bilateral investment treaties (BITS) and regional agreements in similar ways.
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