bit_comments_jan16041-044c0c833e72a2a6.pdf

A joint statement from several environmental and labor organizations urging the U.S. Department of State and the Office of the U.S. Trade Representative (USTR) to revise a draft model bilateral investment treaty (BIT). The authors argue the draft grants foreign investors excessive rights compared to U.S. citizens, lacks investor obligations, and threatens the ability of governments to protect public interests such as health, safety, the environment, and workers' rights.

• The draft model BIT is criticized for failing to meet the 'no greater rights' standard mandated by the Trade Act of 2002, potentially granting foreign investors more substantive rights than U.S. investors have under domestic law. This is attributed to the use of ad hoc panels that are not bound by U.S. Supreme Court precedent and the lack of review by U.S. courts.
• The authors argue that the draft model BIT's approach to expropriation is imbalanced and fails to incorporate key U.S. Supreme Court principles, such as the rule that regulatory actions addressing a public nuisance cannot be considered a taking, or that mere diminution in property value is insufficient to demonstrate a taking.
• The 'fair and equitable treatment' standard in the draft model BIT is described as an unbounded and subjective term that lacks a corresponding right under U.S. law, potentially allowing tribunals to second-guess democratic governmental actions.
• The definition of 'Investment' in the draft is considered overly broad compared to the Takings Clause of the U.S. Constitution, as it includes 'futures, options, and derivatives' and does not recognize that property interests are limited by background principles of property and nuisance law.
• The authors express concern that the draft model BIT limits the ability of governments to implement capital controls to prevent financial instability, noting that the IMF has indicated support for capital controls as a policy tool.
• Provisions regarding the environment (Article 12) and labor (Article 13) are characterized as 'hollow' because they use non-mandatory language ('strive to ensure'), limit their scope to federal laws, and lack strong procedural mechanisms for compliance.
• The authors warn that the Most Favored Nation (MFN) clause lacks clarity, which could allow investors to 'cherry-pick' the most favorable standards and dispute settlement mechanisms from other treaties, potentially circumventing limitations intended in the new model BIT.
• The draft model BIT is criticized for not requiring claimants to exhaust domestic remedies before bringing investment claims, which the authors state is inconsistent with both U.S. and international law.

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} }