bit_comments_jan16041-044c0c833e72a2a6.pdf

The document argues that the draft model BIT lacks necessary obligations for investors and creates imbalanced 'investor-state' dispute settlement procedures that threaten public interest laws. The authors highlight failures to meet the 'no greater rights' standard, specifically regarding expropriation, minimum standards of treatment, and the definition of investment. They also criticize the lack of an appellate mechanism, the absence of a requirement to exhaust domestic remedies, and weak protections for the environment and labor rights.

• The draft model BIT is criticized for creating rights for investors without establishing corresponding obligations for corporations in the communities where they operate, while providing 'investor-state' dispute settlement procedures that allow foreign investors to challenge public interest laws directly.
• The authors argue the draft fails the 'no greater rights' mandate of the Trade Act of 2002 because claims would be decided by ad hoc panels not bound by U.S. Supreme Court precedent and not subject to review by U.S. courts.
• Regarding expropriation, the document claims the draft model BIT fails to incorporate key U.S. legal principles, such as the rule that regulatory actions to address a public nuisance cannot be considered a taking and that mere diminution in property value is insufficient to demonstrate a taking.
• The 'fair and equitable treatment' standard in the draft is described as an unbounded and subjective term that has no corresponding right under U.S. law and could allow tribunals to second-guess democratic governmental actions.
• The definition of 'Investment' in the draft is viewed as overly broad, including 'futures, options, and derivatives' and other economic interests not protected by the Takings Clause of the U.S. Constitution.
• The authors express concern that the draft model BIT would limit the ability of governments to use capital controls to prevent financial instability, citing the East Asian currency crisis of the late 1990s as a precedent for the dangers of unimpeded capital flows.
• Provisions regarding the environment (Article 12) and labor (Article 13) are characterized as 'hollow' because they use non-mandatory language ('strive to ensure'), limit scope to federal laws, and exclude proceedings beyond consultations.

APA

Center for International Environmental Law (2004). bit_comments_jan16041-044c0c833e72a2a6.pdf. https://www.ciel.org/wp-content/uploads/2015/05/BIT_Comments_Jan16041.pdf

Chicago

Center for International Environmental Law. bit_comments_jan16041-044c0c833e72a2a6.pdf. 2004. https://www.ciel.org/wp-content/uploads/2015/05/BIT_Comments_Jan16041.pdf.

Wikipedia

{{cite press release |author=Center for International Environmental Law |title=bit_comments_jan16041-044c0c833e72a2a6.pdf |date=16 January 2004 |url=https://www.ciel.org/wp-content/uploads/2015/05/BIT_Comments_Jan16041.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@misc{centerforinternationalenvironmentallaw2004bitcommentsjan16041044c0c833e72a2a6pdf, author = {{Center for International Environmental Law}}, title = {{bit\_comments\_jan16041-044c0c833e72a2a6.pdf}}, publisher = {Center for International Environmental Law}, year = {2004}, month = jan, url = {https://www.ciel.org/wp-content/uploads/2015/05/BIT_Comments_Jan16041.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }