Treaties
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:
- Use the Our Tools menu to select ICCA Compare Jurisdictions Tool
- Select CHAPTER IX: INVESTMENT TREATY ARBITRATION from the Topic menu.
- Select the Jurisdictions.
- Energy charter treatyAvailable at the University of Melbourne
- Kluwer ArbitrationKluwerArbitration.com is the world's leading online resource for international arbitration research. It contains a wealth of commentary from expert authors and an extensive collection of primary source materials. Plus, as a subscriber you gain access to exclusive materials including the ITA Arbitration Report, ICC cases and awards. The KluwerArbitration.com online database is developed and maintained in conjunction with the International Council for Commercial Arbitration and the Institute for Transnational Arbitration.
Bilateral Investment Treaties (BITs)
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:
- United Nations Conference on Trade and Development (UNCTAD) International Investment Agreements Navigator - (open access) - the most comprehensive and sophisticated database of investment treaties, containing nearly 3000 BITs.
- Browse - using the map on the homepage, select a country and display an alphabetical list of BITs to which that country is a party.
- Browse also by type of economy, country grouping or by most recent.
- Or select Advanced Search and use the 'drag and drop' menu to search for BITs and TIPs or Model Agreements by country, region or economy type and then apply further filters to narrow your search. For each BIT, UNCTAD provides information about its current status, date of signature, and date of entry into force. In most cases, links to the full text treaties are provided.
The IIA Mapping Project is a useful comparison tool to view the provisions of treaties together. More on the Mapping Project.
- For commentary on investment treaty practices in a specific jurisdiction, including model investment treaties, select "Investment Treaty Overviews" as the Content-Type. Then filter the results by jurisdiction.
- Kluwer ArbitrationKluwer Arbitration - includes over 2300 BITs. To find BITs:
Select All Content on the home page.
Check the BITs box and select jurisdiction/s in the dropdown menu.
Use Advanced Options to refine your search with additional filters.
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.
To find BITs:
From the purple menu bar at the top of the homepage, click on Content-Type and select bilateral investment treaties.
Filter the results by State party.
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.
Other Treaties with Investment Provisions (TIPs)
Apart from BITs, other Treaties with Investment Provisions (TIPs) include:
- Multilateral investment treaties; and
- Free Trade Agreements (FTAs) - these often include investment provisions that encourage foreign direct investment by offering certain guarantees and protections to individuals and companies of one contracting state who make investments in another contracting state (the 'host' State). Most FTAs provide for the arbitration of disputes between foreign investors and host States. Most FTAs are bilateral or regional in scope. The Energy Charter Treaty, which includes significant investor protections, is unique in being an industry-specific trade agreement that is not limited by geography.
To find TIPs, use:
- UNCTAD's International Investment Agreements Navigator(open access) - this is the most comprehensive and sophisticated database of investment treaties, containing over 350 TIPs. See the information in the box above on how to browse and search this database.
- World Trade Organization’s Regional Trade Agreements Information Systema good source of existing free trade agreements.
Australian Free Trade Agreements
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:
- Bilateral and Regional Trade Agreements Report,the Productivity Commission's 2010 Bilateral and Regional Trade Agreements Report, in which the Commission advised that Australia should 'avoid accepting ISDS provisions in trade agreements that confer additional substantive or procedural rights on foreign investors over and above those already provided by the Australian legal system' (p 276-77 of the Report).
- Inquiry into the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014.See in particular the Dissenting Report of the Australian Greens party that was highly critical of ISDS in trade agreements.
- Proposed Trans-Pacific Partnership (TPP) AgreementSupport 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).
Books
The Political Economy of the Investment Treaty Regime by Call Number: E-bookPublication Date: OUP, 2017
Reassertion of Control over the Investment Treaty Regime by Call Number: E-bookPublication Date: CUP, 2017
Bounded Rationality and Economic Diplomacy: the politics of investment treaties in developing countries by Call Number: UniM Law KC 227.2 POULPublication Date: CUP, 2015
Australian Treaties
In addition to the resources listed on this page, investment treaties to which Australia is a party are also available in the Australian Treaty Series. From the DFAT Treaties website (open access):
- select Business and Finance from the list of subjects
- select Foreign Investment from the next list of subjects.
- Click Find.