United Nations Conference on Trade and Development (UNCTAD) Series on International Investment Policies for Development

English
ISSN: 
1814-201X (online)
http://dx.doi.org/10.18356/d36e6524-en
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Analysis of technical and policy issues related to international investment rulemaking and their impact on development.
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Identifying Core Elements in Investment Agreements in the APEC Region

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Author(s):
UNCTAD
02 Feb 2009
Pages:
155
ISBN:
9789210577007 (PDF)
http://dx.doi.org/10.18356/89cd095b-en

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This study responds to an Asia-Pacific Economic Cooperation (APEC) forum Investment Experts Group request to identify the core elements in investment agreements in the APEC region. This includes identifying the range of approaches taken in respect of these elements. The study sample, selected by APEC, includes 28 international investment agreements (IIAs) between and/or involving APEC member economies. These comprise 14 bilateral investments treaties and 14 preferential trade and investment agreements. The publication identifies common, core elements of APEC IIAs and the way these provisions assist in liberalization, protection and promotion of investment.
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  • Preface
    The secretariat of UNCTAD is implementing a programme on international investment arrangements. The programme seeks to help developing countries participate as effectively as possible in international investment rulemaking. It embraces policy research and development, including the preparation of a series of issues papers; human resources capacity-building and institution-building, including national seminars, regional symposia and training courses; and support to intergovernmental consensus-building. The programme is implemented by a team led by James Zhan.
  • Abbreviations
  • Executive summary
    This study responds to an Asia–Pacific Economic Cooperation (APEC) forum Investment Experts Group request to identify the core elements in investment agreements in the APEC region. This includes identifying the range of approaches taken in respect of these elements. The study sample, selected by APEC, includes 28 international investment agreements (IIAs) between and/or involving APEC member economies. These comprise 14 bilateral investment treaties (BITs) and 14 preferential trade and investment agreements (PTIAs).
  • Introduction
    The 28 international investment agreements (IIAs) that form the basis of this study represent a small but diverse sample of the different types of IIAs (see annex 1). They illustrate differing objectives and the complexity for policymakers and investors operating in a large treaty network. This study identifies common, core elements of APEC IIAs and the way these provisions assist in the liberalization, protection and promotion of investment. It also considers how the core elements compare with investment principles of existing APEC instruments, namely, the Non-Binding Investment Principles, the “Menu of Options”, and the Transparency Standards on Investment (see annex 2).
  • Identifying core elements
    This chapter examines provisions of APEC IIAs in some detail and illustrates the approaches taken by APEC economies in formulating legal text. It also demonstrates the interrelationship between scope and definitional issues and substantive provisions. Scope issues are addressed first, and then substantive provisions are divided into three types: liberalizing, protecting and promoting provisions. Where a provision can, for example, liberalize and protect foreign investment, it has been categorized according to its dominant trait with discussion of its broader effect usually being included there, though sometimes also warranting a separate discussion under a different section.
  • APEC investment instruments
    This section discusses the extent to which the principles and practices in APEC investment instruments are reflected in the approach to treaty making taken by individual member economies. Considered together, the APEC investment instruments set out principles and practices that are consistently reflected in the IIAs concluded by APEC members. However, looking at each of the three instruments individually reveals divergence in several areas.
  • Conclusions
    The core elements of APEC IIAs described in this study interact to determine the obligations of the treaty parties and how the treaties will liberalize, protect and promote investment. Three types of interaction can be identified: (a) the interaction of definitions with the substantive provisions; (b) the interactions of exceptions (general exceptions and scheduled exceptions) with the substantive provisions, and (c) the interaction of the substantive provisions with the dispute resolution provisions.
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