Registration and Approval Requirements in Investment Treaties

The report examines how States use registration and approval requirements in investment treaties to control which investments are eligible for protection and international arbitration. It analyzes treaty practices in Southeast Asia and Africa, reviews key arbitral awards, and provides drafting recommendations to ensure these requirements are legally effective and not dismissed as mere formalities.

• States use registration or approval requirements to limit the scope of investment treaties, which determines which investors can initiate international arbitration against host States. These requirements often stem from planned economic models used by developing countries in the 1960s and 1970s.
• The 2009 ASEAN Comprehensive Investment Agreement (ACIA) links approval requirements to domestic law and establishes specific procedural disciplines, such as requiring the competent authority to notify applicants of a denial in writing within 4 months of a complete application.
• The COMESA Investment Agreement employs a registration system independent of domestic law, requiring investments to be specifically registered with a pre-determined Member State authority listed in an Annex.
• Arbitral tribunals have recognized that approval requirements are legitimate policy tools for States to exercise qualitative control over promoted and protected investments.
• Case law demonstrates that failure to meet registration requirements can lead to a claim being denied on jurisdictional grounds, as seen in Yaung Chi Oo v. Myanmar and Philippe Gruslin v. Malaysia, where investments were not classified as 'approved projects'.
• The Desert Line Projects LLC v. The Republic of Yemen case highlights that vague references to a 'certificate' without specified processes may be insufficient to block jurisdiction, especially if the State's conduct suggests a waiver of the requirement.
• To ensure registration clauses are effective, the report recommends that States explicitly state that approval is a precondition for coverage and ensure that notification processes are clear, transparent, and burden-free.

APA

Bernasconi-Osterwalder, N., & Malik, M. (2012). Registration and Approval Requirements in Investment Treaties. International Institute for Sustainable Development. https://www.iisd.org/system/files/publications/best_practices_registration_requirements.pdf

Chicago

Bernasconi-Osterwalder, Nathalie, and Mahnaz Malik. Registration and Approval Requirements in Investment Treaties. International Institute for Sustainable Development, 2012. https://www.iisd.org/system/files/publications/best_practices_registration_requirements.pdf.

Wikipedia

{{cite report |last1=Bernasconi-Osterwalder |first1=Nathalie |last2=Malik |first2=Mahnaz |title=Registration and Approval Requirements in Investment Treaties |publisher=International Institute for Sustainable Development |date=December 2012 |url=https://www.iisd.org/system/files/publications/best_practices_registration_requirements.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{bernasconiosterwalder2012registration, author = {Bernasconi-Osterwalder, Nathalie and Malik, Mahnaz}, title = {{Registration and Approval Requirements in Investment Treaties}}, institution = {International Institute for Sustainable Development}, year = {2012}, month = dec, url = {https://www.iisd.org/system/files/publications/best_practices_registration_requirements.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }