July 2013

Emerging Voices: Minilateral Approaches to International Investment Agreements

[Maninder Malli recently completed a LL.M. (International Legal Studies) at New York University and he is currently working with the Legal Vice Presidency of the World Bank in Washington, D.C.] International investment law (IIL) is highly dynamic.  The lack of a broad multilateral agreement on investment coupled with the rapid rise of foreign direct investment (FDI) has led to the profusion of bilateral investment treaties (BITs) and, increasingly, minilateral arrangements between three or more geographically-proximate or otherwise like-minded States.  The ‘spaghetti bowl’ of international investment agreements is becoming further entangled with hundreds of minilateral arrangements, including free trade agreements (FTAs) with investment provisions, economic partnership agreements and regional agreements. In many areas of international law, including international trade, States are abandoning glacial multilateral initiatives and opting for regional or sectoral approaches to solve global problems and coordinate mutually beneficial action.  Moses Naím suggests that the failure since the 1990s of most grand multilateral negotiations represents not only a perpetual lack of international consensus, but also a “flawed obsession with multilateralism as the panacea for all the world’s ills.”  Naím argues for a smarter, more targeted approach, by bringing to the relevant table “the smallest number of countries needed to have the largest possible impact on solving a particular problem.”  Francis Fukuyama, similarly, has advocated for “multi-multilateralism,” entailing a diversity of institutions and institutional forms to provide governance across a range of security, economic, environmental, and other issues. In the context of IIL, the profusion of regional investment arrangements (such as the recent trilateral investment agreement between China, Japan and South Korea and the Mexico–Central America FTA) and the ongoing discussions for investment regulation in a Trans-Pacific Partnership (TPP) and a Transatlantic Trade and Investment Partnership (TTIP) are clear evidence of this minilateral trend.  As proposed in the TPP and TTIP, investment regulation is incorporated into broader economic arrangements which often include trade, intellectual property and regulatory coherence.  The Energy Charter Treaty (ECT) is a sectoral example of a minilateral treaty which entails investor protection.  States are clearly converting their strong bilateral economic and political relationships into minilateral arrangements to regulate FDI. These initiatives, at least in part, reflect a desire of State parties to circumvent broader multilateral efforts that lack consensus on the precise standards of treatment of foreign investors and thus fail to achieve substantive common ground.  The OECD’s failed Multilateral Agreement on Investment in the late 1990s and the inability to advance the multilateral investment agenda within the World Trade Organization illustrate the challenge of crafting comprehensive general principles and specific treaty provisions which are responsive to the diverse and vacillating economic, social and political conditions of a large number of States.  In the IIL context, this is most clearly manifested in the dichotomy between (i) the desire of States to attract FDI and to be perceived as active participants in the liberal economic order, on one hand, and (ii) the need to retain regulatory flexibility and avoid plethoric investor-state arbitration, on the other.  The absence of complete and adequate multilateral investment rules was historically blamed on the discord between capital-supplying and capital-receiving nations.  This dichotomy is today no longer as simple, as an increasing number of countries are both capital suppliers and capital recipients, and the correlation between the two is ever-fluctuating. I submit that greater attention should be paid to the potential for minilateral arrangements to better reflect modern State desires and ambitions for reciprocal FDI promotion and protection.  While the content of most investment agreements is remarkably similar, there are important deviations in the wording, application and interpretation of many substantive provisions.