CEU Electronic Theses and Dissertations, 2023
| Author | Agarwal, Shivang |
|---|---|
| Title | Construction and Re(Construction) of Model BITs in the Global South: Contextualizing the Policy Preferences of India, Brazil and the SADC |
| Summary | The Global North has traditionally dominated the negotiation and construction of model bilateral investment treaties (“Model BIT(s)”). However, this dominance has been increasingly called into question by the Global South through the proliferation of their own Model BITs that offer textual as well as policy-based alternatives to the core investment protection measures and dispute resolution mechanisms engendered by the Models BITs of the Global North. The reconstruction of Models BITs in the Global South was accelerated due to the explosion of investment arbitrations against developing nations and the expanding flow of capital from the Global South to the North. Consequently, nations forming part of the Global South have developed distinct Model BITs based on the unique historical and socio-political circumstances in which they have found themselves. This diversity may be perceived as betraying a lack of coherence among developing nations regarding the avowed objectives of their BIT programs which in turn erodes their effectiveness. By way of this thesis, I argue that despite the development of novel dispute settlement procedures and varying textual formulations of common standards of investment protections across the Model BITs of developing nations, there exists coherence in the policy preferences underlying the construction of such investment instruments. These coherent policy preferences are centred around the inclusion of narrow and inward-looking provisions in Model BITs, for preserving the sovereign’s right to regulate and suppressing traditional standards of treatment accorded to foreign investors. To demonstrate this, I shall be examining the provisions relating to the characterization of ‘investment’, dispute settlement, and minimum standards of treatment of the Models BITs of India, Brazil, and the South African Development Community (“SADC”). I shall then seek to demonstrate that such Model BITs are unable to posit themselves as viable alternatives to the Model BITs of the Global North, because the policy preferences underlying such instruments, can be traced to the larger issues of capacity and expertise plaguing the bureaucracies of developing nations. These issues range from inefficient decision-making structures to a lack of understanding of the symbolic effects of BITs on foreign investors. |
| Supervisor | Tommaso Soave |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2023/agarwal_shivang.pdf |
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