bit_comments_aug09-4867933a2517bc5a.pdf

A coalition of civil society organizations, including the Center for International Environmental Law and Earthjustice, submitted comments to the U.S. Department of State and the U.S. Trade Representative on July 31, 2009, regarding the review of the 2004 U.S. Model Bilateral Investment Treaty (BIT). The coalition argues that the model BIT fails to balance investor rights with public interest protections and grants foreign investors greater substantive rights than those afforded to U.S. citizens under domestic law.

• The coalition argues that the 2004 model BIT's investor-State dispute settlement (ISDS) mechanism is flawed because it allows foreign investors to bypass domestic courts and challenge public interest laws before ad hoc panels that are not bound by U.S. Supreme Court precedent.
• The document asserts that the model BIT violates the 'no greater rights' mandate of the Trade Act of 2002 by providing foreign investors with broader protections than U.S. citizens, specifically regarding the definition of investment and expropriation standards.
• The coalition identifies several failures in the model BIT's definition of expropriation compared to U.S. law, including the omission of the principle that regulatory actions to address public nuisances are not takings and the failure to distinguish between land and personal property.
• The 'fair and equitable treatment' standard in the model BIT is criticized as being too subjective and unbounded, potentially allowing tribunals to second-guess government actions in a way that is antithetical to democracy.
• The coalition recommends replacing investor-State dispute resolution with a State-to-State mechanism and requiring the exhaustion of domestic remedies before any international tribunal can hear a case.
• The document highlights a lack of general exceptions for health, safety, and environmental (HSE) measures in the 2004 model BIT, which creates uncertainty for states attempting to protect their populations and environments.
• The coalition expresses concern that the model BIT's provisions on capital transfers could restrict a government's ability to implement capital controls to prevent financial instability, contrary to recent IMF and UN perspectives.
• The coalition argues that the Most Favored Nation (MFN) treatment provisions are too vague, potentially allowing investors to 'cherry-pick' the most favorable standards from other treaties, such as NAFTA.

APA

Center for International Environmental Law (2009). bit_comments_aug09-4867933a2517bc5a.pdf. https://www.ciel.org/wp-content/uploads/2015/05/BIT_Comments_Aug09.pdf

Chicago

Center for International Environmental Law. bit_comments_aug09-4867933a2517bc5a.pdf. 2009. https://www.ciel.org/wp-content/uploads/2015/05/BIT_Comments_Aug09.pdf.

Wikipedia

{{cite press release |author=Center for International Environmental Law |title=bit_comments_aug09-4867933a2517bc5a.pdf |date=31 July 2009 |url=https://www.ciel.org/wp-content/uploads/2015/05/BIT_Comments_Aug09.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@misc{centerforinternationalenvironmentallaw2009bitcommentsaug094867933a2517bc5apdf, author = {{Center for International Environmental Law}}, title = {{bit\_comments\_aug09-4867933a2517bc5a.pdf}}, publisher = {Center for International Environmental Law}, year = {2009}, month = jul, url = {https://www.ciel.org/wp-content/uploads/2015/05/BIT_Comments_Aug09.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }