bit_comments_aug09-4867933a2517bc5a.pdf

The document argues that the 2004 Model BIT prioritizes investor rights over public interest, specifically regarding sustainable development, environmental protection, and health and safety. The authors criticize the investor-State dispute settlement (ISDS) mechanism for bypassing domestic courts and lacking appellate review. They contend the model fails the 'no greater rights' standard by using broad definitions of investment and expropriation that deviate from U.S. Supreme Court precedent. Key recommendations include replacing ISDS with state-to-state dispute settlement, requiring the exhaustion of domestic remedies, and introducing general exceptions for health, safety, and environmental measures.

• The 2004 model BIT's investor-State dispute settlement (ISDS) mechanism is criticized for allowing foreign investors to bypass domestic courts and be judged by ad hoc panels that are not bound by U.S. Supreme Court precedent or subject to appellate review.
• The authors argue that the model BIT fails the congressional 'no greater rights' mandate because it provides foreign investors with substantive rights—particularly regarding expropriation and the definition of investment—that exceed those available to U.S. citizens under domestic law.
• The definition of 'Investment' in the model BIT is considered overly broad, as it includes 'futures, options, and derivatives,' which the authors suggest could create uncertainty regarding financial instruments used for climate change mitigation, such as carbon offsets.
• The document identifies a lack of a general exception for health, safety, and environmental (HSE) measures in the 2004 model BIT, which creates legal uncertainty and may hinder a state's ability to respond to HSE risks without risking liability.
• The authors contend that the 'fair and equitable treatment' standard is dangerously open-ended and subjective, potentially allowing tribunals to second-guess democratic governmental actions without the deference required by U.S. law.
• The coalition recommends that the model BIT be revised to require the exhaustion of domestic remedies before any international forum is accessed, arguing this would strengthen the rule of law in developing countries.
• The document argues that the prohibition of performance requirements in the model BIT removes essential tools for ensuring that foreign investments benefit the local economy and contribute to sustainable development.

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} }