Registration and Approval Requirements in Investment Treaties

This report analyzes the use of registration and approval requirements in investment treaties to limit their scope of application. It examines how these requirements function in practice, their interpretation by arbitral tribunals, and provides recommendations for States to ensure such clauses are legally effective and transparent.

• States use registration or approval requirements in investment treaties to limit the scope of application, determining which investors can initiate international arbitration. These requirements can be integrated into the definition of 'investment' or placed within a separate provision on the treaty's scope.
• Different regional approaches exist for linking treaty coverage to registration. The 2009 ASEAN Comprehensive Investment Agreement (ACIA) aligns international obligations with domestic law requirements and sets out clear procedural disciplines in Annex 1. In contrast, the COMESA Investment Agreement establishes a registration system specifically for the treaty that is independent of domestic law, utilizing national investment promotion agencies as contact points for 18 member states.
• Arbitral tribunals have recognized that approval requirements are legitimate policy tools that allow governments to exercise qualitative control over the types of investments they promote and protect.
• Case law demonstrates that failure to meet specific approval requirements can lead to a claim being denied on jurisdictional grounds. In Yaung Chi Oo v. Myanmar, the tribunal found that the lack of written approval required under the 1987 ASEAN IGA prevented the investment from being covered. Similarly, in Philippe Gruslin v. Malaysia, the tribunal rejected a claim because the investment was not an 'approved project' as defined by the treaty and Malaysian regulatory approval.
• The Desert Line Projects LLC v. The Republic of Yemen case indicates that vague requirements, such as a general reference to an 'investment certificate' without specifying the process or issuing department, may be viewed as mere formalism and may not be sufficient to block jurisdiction, especially if the state's conduct suggests waiver or estoppel.
• To ensure registration or approval requirements are effective, the report recommends that States explicitly state these as preconditions for coverage and ensure processes are transparent and burden-free. This can be achieved by linking the process to domestic law or establishing independent contact points and detailed procedures within the treaty.

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} }