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New Generation Of Bilateral Investment Treaties: Consensus Or Divergence?

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Chapter Summary

This article focuses on the main features of new generation Bilateral Investment Treaties (BIT) such as clarification of obligations, public policy objectives and innovations in relation to dispute settlement, on the basis that they constitute useful comparators by which to assess consensus or divergence. The United Nations Conference on Trade and Development (UNCTAD) survey has found that despite the fact that BIT's are stated to achieve both investment promotion and protection, traditionally the emphasis has been on protection with promotion primarily perceived as a desirable (if not perhaps inevitable) side effect. This survey demonstrated that only a minority of treaties contained explicit investment promotion provisions. It is clear that many of the new generation features discussed in this article have been prompted by developments in investment arbitration jurisprudence, notably in the context of the North American Free Trade Agreement (NAFTA).

Keywords: Bilateral Investment Treaties; Consensus; dispute settlement; Divergence; Free trade agreement; obligations; United Nations Conference



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