Redesign as Reform: A Critique of the Design of Bilateral Investment Treaties

Abstract

This Article engages with the heated debates about the reform of the legal regime of international investment. The primary goal of most reform proposals is to improve the regime’s dispute settlement mechanism. This Article draws attention to the redesign of bilateral investment treaties — the principal legal instrument in international investment law — as an alternative reform agenda. It describes the main extra-legal theories put forward in the investment law literature to explain the design of these treaties. The Article argues that none of the cited theories fully justify the current design, but rather warrant modifications thereof which go far beyond the reform of dispute settlement. The Article outlines these modifications as possible options for reform and provides a road-map for further research on the redesign of bilateral investment treaties.

Keywords: International Economic Law, International Investment Law, International Investment Agreements, BITs, Investment Arbitration, ISDS, International Development, Investment Policy, Reform, Redesign, Globalization

JEL Classification: K33