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TRANSFER PROVISIONS OF BITS IN TIMES OF FINANCIAL CRISIS

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This article discusses the provisions on investment-related transfers, which are routinely included in International Investment Agreements (IIAs) and Bilateral Investment Treaties (BITs). Under these transfer provisions the right of investors to transfer funds related to covered investments is apparently not subject to any explicit limitation. The article discusses the problems connected with the absence in many BITs of explicit derogations to the permitted transfers, and temporary exceptions to such transfers in case of balance of payments or macroeconomic difficulties. After having analysed the scarce case law on the matter, the article highlights the cautious approach, taken (at least until now) by arbitral tribunals in interpreting transfer provisions. Finally the article illustrates the growing trend in the international treaty practice towards the inclusion of transfer provisions, accompanied with safeguard provisions in case of serious balance-of-payments difficulties and external financial difficulties.

10.1163/22116133-90230040
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/content/journals/10.1163/22116133-90230040
2014-11-17
2017-11-23

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