By United Nations

ISBN-10: 1429479787

ISBN-13: 9781429479783

ISBN-10: 9211127106

ISBN-13: 9789211127102

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

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B. The granting of most-favoured nation treatment only There are BITs that, despite containing an admission clause, also provide some rights to investments in the pre-establishment phase. An illustration of this approach is the BIT between Bangladesh and Japan (1998): “Article 2 1. Each Contracting Party shall, subject to its rights to exercise powers in accordance with the applicable laws and regulations, encourage and create favorable conditions for investors of the other Contracting Party to make investment in its territory, and, subject to the same rights, shall admit such investment.

This approach renders the “Barcelona Traction” award inapplicable. Thus, assets indirectly owned or controlled by investors of the other contracting party are covered, regardless of the country in which the company directly owning the assets has been incorporated. All BITs incorporating the notion of “control” into their definitions refer to “direct” and “indirect” control or ownership. This method highlights an important aspect of these treaties — namely, that they protect investments of nationals or companies of a contracting party, no matter how many corporate layers exist between the national or company and the investment.

A third group of BITs add to the obligation to grant fair and equitable treatment the duty to abstain from impairing the investment through unreasonable or discriminatory measures. The BIT between Hungary and Lebanon (2001) illustrates this frequently used approach: “Article 2 Promotion and Protection of Investments […] 2. Investments and returns of investors of either Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party.

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

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