Treaties

The focus of this website is investment treaties that allow investors to sue governments before international arbitration tribunals. There are several thousand treaties that give this right to investors and corresponding power to arbitrators.

Most of the treaties are bilateral investment treaties (BITs). These treaties began to provide for investor-state arbitration on a regular basis in the 1980s, although the earliest BITs date from the 1950s. They have a historical connection to post-colonial commercial treaties of the early 20th century. UNCTAD offers a useful searchable database of bilateral investment treaties.

Over 150 confirmed cases have been launched against states under BITs (to May 2010). Other cases exist but remain confidential. The majority (115 or 73%) of known cases were brought by investors from the US, UK, Germany, France, Netherlands, Belgium, Italy, and Spain, as illustrated here.

Some free trade agreements may contain an investment chapter that provides for investor-state arbitration. Examples include the North American Free Trade Agreement (NAFTA Chapter 11), the Central America-Dominican Republic-U.S. Free Trade Agreement (CAFTA Chapter 10), the Framework Agreement on the Association of Southeast Asian Nations (ASEAN) Investment Area, and a number of bilateral free trade agreements.

At least three free trade agreements – NAFTA, CAFTA, and ASEAN – have led to investor lawsuits against states. Of these, NAFTA has been the most actively used by investors, with over 60 claims filed. These have been primarily against Canada (30 cases, as of August 2011), followed by Mexico (17) and the United States (16).

The Energy Charter Treaty is somewhat unique in that it regulates a sector – the energy sector – and allows investor lawsuits against states in that sector (ECT text). As of May 2010, the ECT has generated at least 25 claims, dispersed among 12 of its members, mostly in Eastern Europe and Asia. Germany also faced a claim under the ECT, involving a decision by the municipal council of Hamburg to attach conditions to a coal-fired power plant due to environmental concerns. As an example of how an investor lawsuit can shift regulatory decisions, Germany settled this case in September 2010 by agreeing to the issuance of a water permit allowing the plant to proceed.

Attached is an analytical report of known cases (to May 2010) under BITs, NAFTA, the ECT, and CAFTA, classified by respondent state.

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