New Model Bilateral Investment Treaty — Upholding International Law and Good for U.S. Firms.

The USTR released the revised 2012 model of the “Bilateral Investment Treaty.” This is the first revision since 2004 during the Bush administration. It builds on the traditional position of the U.S. toward investment treaties and builds upon it.

 It contains important policy changes and policy positions.  “U.S. Concludes Review of Model Bilateral Investment Treaty.USTR News (April 20, 2012). “Text of Model BIT Agreement.” (USTR 2012).

For example, it includes new provisions concerning the environment (Article 12) and labor (Article 13). Most importantly, it reaffirms the primacy of customary international law concerning minimum standards for treatment of foreign corporations and expropriations (Annex A and Annex B).

 In particular, it confirms that customary international law “results from a general and consistent practice of States that they follow from a sense of legal obligation … (and that the customary international law minimum standard of treatment of aliens refers to all customary international law principles that protect the economic rights and interests of aliens.”

This reaffirmation is particularly noteworthy in describing the U.S. adherence to customary international law and its methodology. This revised model is particularly important to encouraging a more open and liberalized global investment environment.  This is a great benefit for U.S. firms.

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About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (School of Public Policy).
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