The legal protection of Foreign Direct Investment under public international law is guaranteed by International Investment Agreements (IIAs). There are thousands of bilateral investment treaties (BITs), as well as Multilateral Investment Treaties, such as the Energy Charter Treaty, and some Free Trade Agreements also include provisions to protect direct investment. Most of these agreements were ratified by States in the 1980s and 1990s.
Most of these legal instruments provide foreign investors with substantive legal protection and access to Investor State Dispute Settlement for redress against Host States for breaches of such protection.
To compare the IIA regimes in two or more countries, use Kluwer Arbitration's International Handbook Commercial Arbitration Compare Jurisdictions tool (UniMelb staff & student access). This resource provides useful comparative summaries but not links to full text treaties. From the homepage:
Bilateral Investment Treaties (BITs) establish the terms and conditions for private investments made by individuals and business entities from one sovereign State in another sovereign State.
We recommend the following databases to locate BITs:
The full text of each BIT in English is provided and may be downloaded in PDF format.
Investment Claims (UniMelb staff & student access) - contains over 1500 BITs.
The full text of each BIT in its original language is provided and may be downloaded in PDF format. A brief English language summary ("comment") is included before the full text of each treaty.
Apart from BITs, other Treaties with Investment Provisions (TIPs) include:
To find TIPs, use:
The inclusion of investor state dispute settlement '(ISDS') provisions in Australian Free Trade Agreements is unsettled and controversial. There have been changes of policy with successive changes of government. The ISDS debate has intensified since 2010 in the context of the Philip Morris claim related to Australia’s tobacco plain packaging legislation and the negotiation of the Trans-Pacific Partnership ('TPP'). Over the last decade, there has been a number of parliamentary enquiries into investment arbitration. See for example:
Support for ISDS has continued to decline, as evidenced by the comments in the public submissions to the Proposed Trans-Pacific Partnership (TPP) Agreement inquiry conducted by the Joint Standing Committee on Treaties and the Senate Foreign Affairs, Defence and Trade Committee (the ‘Senate Committee’). This 2017 Report includes ISDS as a key issue (see Chapter 3 - 3.40-3.50).