The Belt & Road Initiative (BRI) was proposed by China’s President Xi Jinping in 2013. It brings about significant implications for China’s foreign investment law and policy both at the national level and at the international level. It also has implications on Chinese attitude toward the ongoing ISDS reform. Further, although China is a leading state, both as host state and as home state, China’s government and Chinese investors have not become involved much in the investor-state dispute settlement (ISDS). In light of the efforts that many states and several international organizations have made to improve the ISDS, China seeks to reform its own ISDS, which is of significance for the BRI practice.
From a normative perspective, it is not unsound to suggest that the BRICS countries might be both reformers and disrupters of the investment treaty regime. On the one hand, the BRICS countries may be reformers, enhancing a more balanced and thus sustainable investment treaty regime. BRICS countries could remedy two defects inherent in the investment treaties that developed states have advocated for decades. The first is that the treaties have largely failed to serve developing state interests in attracting new investment. The second defect in traditional investment treaties is their inflexibility. On the other hand, however, the BRICS countries are likely to disrupt the international legal order on investment, bringing another imbalanced approach to investment treaties. Effecting investment treaties with greater balance can help BRICS countries to gain broader recognition as responsible powers, shouldering and sharing the work of maintaining international peace and increasing international prosperity.
The international investment regime is in a phase of intensive scrutiny and transition. The major economics, including the majority BRICS members (Brazil, India, China, and South Africa), have been taking stock of their bilateral investment treaties (BITs) and exploring diverse approaches to reform those treaties. In the spotlight of these reforms, is India. In the background of increased arbitral investment disputes in recent years, India released its new Model BIT in 2015 and thereafter terminated its existing BITs. Remarkedly, unlike its previous treaty practice which provided generous protection for foreign investors, the new Model BIT largely restricted investment protection. India has entrenched itself in the continuing debates over whether it can project a positive influence on the reform of the international investment regime. This chapter endeavours to review the origin, developments, and reform of India’s investment policy and strategy. In particular, this chapter examines the significant features of India’s new Model BIT as well as its implication for India’s future trajectory on investment treaties negotiations with other economic giants, including China.
The twenty-first century has been witnessing an overall transformation of international investment law, which was unprecedented either in the nineteenth century or in the twentieth century. The BRICS, including Brazil, Russia, India, China and South Africa, are expected to exercise substantial effect on this process. This book mainly purports to investigate why and how the BRICS countries modernize their approach to investment treaty regime, whether they can develop some common approach to investment treaties, and, most importantly, what BRICS countries will bring to the investment treaty regime in the future, or they are reformers or disruptors of international legal order on investment.
This chapter reviews the performance of the BRICS FDI inflows in the period of 2013-2018, suggesting that the investment barriers not only discourage the FDI inflow to/among the BRICS but also make the BRICS reluctant to embrace liberal investment treaties. It further investigates the BRICS efforts, individually and jointly, in reducing investment barriers and enhancing investment facilitation. It suggests that the BRICS have started a correct direction of placing the priority on the improvement of investment facilitation both at the domestic level by reducing investment barriers and at the international level by advocating the investment facilitation in the ongoing process of reforming investment treaty regime.
Brazil developed its approach to investment agreements precisely in the ongoing process of investment treaty regime reform. Unlike the other states - which were engaged in reforming their pre-existing policies on investment agreements -, Brazil was joining the system of investment agreements altogether. Although Brazil signed fourteen BITs in the 1990s, it was not a party committed to any investment agreement until July 2017 when Brazil-Angola BIT was signed in January 2015 and entered into force. This unique position enabled Brazil to craft its investment agreements closer to its actual needs, and a vital feature of the Brazilian approach is the role of investment facilitation, instead of the traditional concern with investment protection enshrined in the BITs. Investment facilitation is a topic that ranks as a candidate for multilateral treatment. Investment facilitation comprises a set of measures, mechanisms and actions aimed at putting in place favourable national investment environments. Investment facilitation measures have an active procedural or practical component, and thus a multilateral approach to investment facilitation can direct discussions on the reform of the regime towards a constructive and productive path, while simultaneously avoiding the controversies surrounding proposals for multilateral rules on topics that have proven very contentious, namely investment protection and dispute resolution.
This chapter discusses the following issues, including the general landscape of South Africa’s international investment treaties, the evolution of South Africa’s policy in relation to the dispute settlement mechanisms, the current approach of South Africa to BITs, the Protection of Investment Act (2015), South Africa’s efforts to seek a balance between investor protection and state sovereignty, an assessment of the different bases of investor protection currently in South Africa, and investor protection in the Southern African Development Community (SADC). There is currently more than one system of investment protection in place in South Africa. The BITs that are still operational will continue to provide protection and so will the provisions of the terminated BITs albeit for a limited period of time; those investments that had been made by investors from countries whose governments have not concluded any treaties or whose treaties have not come into operation, are governed by the normal South African law. With the Protection of Investment Act (2015), new investors will potentially have fewer rights than their country men who already have investments in South Africa. The diversity of approaches is not only found within South Africa but can also be seen when looking at the practice in BRICS as a whole. There is no one-size-fits-all when it comes to the protection of investment or the investor-state dispute settlement in existence.