International investment policymaking is in transition

21 June 2013

UNCTAD's fourth IIA Issues Note for this year looks at treaty termination rules in bilateral investment treaties (BITs). It finds that 1,300 BITs will have reached their "anytime termination stage" by the end of this year.

Today, the international investment regime consists of over 3,200 treaties. This includes more than 2,860 bilateral investment treaties, and over 340 "other" international investment agreements (e.g. free trade agreements, economic partnership agreements, or framework agreements with an investment dimension).

At the same time, the international investment regime poses a series of systemic, capacity and development challenges. Countries are taking actions to address these challenges, such as clarifying the meaning of treaty provisions, replacing older treaties with new ones, and revising or terminating them. Treaty expiration provides opportunities for such actions.

According to UNCTAD's analysis, by the end of 2013 more than 1,300 bilateral investment treaties will be at the stage where they could be terminated or renegotiated at any time. These account for 45 per cent of the bilateral investment treaties in existence today. Furthermore, between 2014 and 2018, at least 350 BITs will reach the end of their initial duration.

Treaty expiration in large numbers makes it possible to address inconsistencies and overlaps in the multi-faceted and multi-layered investment regime, and to update it in light of a development paradigm shift. In taking such actions, countries need to weigh up the pros and cons in view of their investment climate (and foreign investors' perception of it), their own investors abroad, and their overall development strategies.