International Investment Law

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. 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.

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: 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.

• 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.

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:

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:

• select Business and Finance from the list of subjects 
• select Foreign Investment from the next list of subjects.
• Click Find. 

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: