States are increasingly critical of the current regime of protection of foreign investment. They often believe that investment treaties require undue limitations of their regulatory powers and undermine their effort to develop sustainably. The article first explores the relationship between foreign investment and sustainable development. It then examines recent treaty practice and assesses how States can take full advantage of investment treaties as vehicles for economic development without compromising on the protection of the environment, labour standard and human rights. It also provides a tentative taxonomy of the different treaty clauses and techniques that may contribute to create a stable and predictable legal framework for foreign investment that is also respectful of the various private and public interests involved.
A large number of BITs concluded by France contain quite a peculiar clause (for instance Article 10 BIT with Argentina), which has been recently the object of questionable interpretations and applications in EDF International S.A. et al. v. Argentina and Mr. Franck Charles Arif v. Moldova. Both tribunals allowed the claimants to benefit, through the MNF clause, from umbrella clauses contained in BITs with third States. It is argued that neither tribunal has rigorously interpreted the relevant provisions in the basic treaty, nor ensured compliance with the ejusdem generis principle. The legal uncertainty that surrounds these provisions is detrimental for foreign investors and States alike. Concerned States should consider taking the measures necessary to clarify, jointly or individually, the content of these provisions and of the obligations stemming from them.
Since 1999, icsid tribunals have almost systematically held that they have the power not only to recommend but also to order provisional measures under Article 47 of the icsid Convention and Rule 39 of the Arbitration Rules. This article argues that the legal arguments offered by these tribunals are often not fully elaborated and in any case not entirely convincing. It then provides an alternative reading of the decisions relating to the mandatory character of provisional measures, in the sense that they imply a significant departure from the meaning the contracting parties recorded in the treaty. Yet, as the majority of icsid members have endorsed, accepted or at least acquiesced in such departure, it appears that Article 47 of the icsid Convention has been informally modified through subsequent practice.
A complex, fragmented and heterogeneous network of domestic and international legal instruments promotes and protects foreign investment in Africa. While bilateral treaties seem to be increasingly unpopular, regionalism is clearly on the rise in the continent. The article examines how regional treaties have contributed to upgrade the current regulation of foreign investment. From this perspective, Africa can be seen as a normative laboratory. Regional treaties, most prominently those concluded within the Economic Community of West African States (ECOWAS) and the Southern African Development Community (SADC), contain several important novelties meant to rebalance the rights and obligations of the various stakeholders as well as to safeguard host State policy space. The content of these treaties has been brought more in line with the evolution of international law, especially with regard to the protection of the environment, social and human rights, transparency, corruption, public scrutiny, economic development, and corporate responsibility.