By United Nations
The variety of bilateral funding treaties (BITs) among nations elevated from a bit of over 1,000 to greater than 2,500 among 1995 and 2006. the current examine presents an in-depth research of the new evolution of important provisions present in BITs. The research makes use of quite a few examples from BITs concluded among 1995 and 2006 to help its research.
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Extra info for Bilateral Investment Treaties 1995-2006: Trends in Investment Rulemaking
29 2. Right of establishment Besides those BITs containing an admission clause, there is a second category of agreements that grant certain rights of entry to investors of the other contracting party. a. The granting of national treatment and most-favoured nation treatment This approach consists in providing foreign investors with national treatment and MFN treatment not only once the investment has been established, but also with respect to the establishment. This means that investors of one party will receive treatment not less favourable with regard to investing in the territory of the other party than domestic investors and investors of any other third country (UNCTAD 1999d).
This prompted the intervention of the NAFTA Free Trade Commission. 42 Potential controversies as to the content of the standard can be minimized through the specific text in the BIT. Some BITs contain more precise language than others, and thus the room allowing for different interpretations of the content of the fair and equitable treatment standard may vary significantly among agreements. 43 First, there are a significant number of BITs that grant covered investments “fair and equitable treatment” without making any reference to international law or to any other criteria to determine the content of the standard.
In addition, the wording of the clause leaves very little discretion to a potential arbitral tribunal and explicitly states that if measures of the kind referred to are adopted, it “shall” be considered a violation of the standard. If this approach can be deemed to provide a very extensive scope to the fair and equitable treatment standard, it is also true that among recent BITs one can find methods at the other end of the spectrum. A sixth approach used to address the fair and equitable standard is to make the guarantee contingent on the domestic legislation of the host country.