Edited by Andrea K. Bjorklund and August Reinisch
Chapter 8: The Evolution of Investment Protection Based on Public International Law Treaties: Lessons to be Learned
Christian Tietje and Emily Sipiorski INTRODUCTION This chapter examines the historical development of investment protection instruments – a development that has led to the current network of bilateral investment treaties (BITs) and free trade agreement (FTA) investment chapters. The examination provides a broad picture of investment protection and indicates the development of a coherent set of values that establish the architecture of the current system. An international constant has developed within the regime despite the variations in past protection instruments. This consistency indicates the ripeness for the development of a soft law instrument, while also providing structure for such an instrument. At the same time, attention must be paid to the distinctions within the BIT network that indicate a preservation of negotiating power and autonomy of states, a level of state control that certainly contributes to the success of the system. Understanding that multi-layered architecture serves an important structural purpose in the larger context of a possible soft law codiﬁcation. In order to gain a full picture of this investment protection structure, the analysis considers the development of these protections over time. This begins with consideration of the agreements, including concessions and treaties that preceded the current BIT form, foreshadowing the more speciﬁc protections currently included in the investment protection instruments. The overview begins with merchant concessions from as early as the tenth century, trade association concessions from a middle period, and ﬁnally Treaties of Friendship, Commerce and Navigation (FCNs) from the late eighteenth century to the mid-twentieth century....
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