Developing and Negotiating Based on a Model Investment Treaty

The document examines the shift in international investment governance as countries move toward 'new-generation' model investment treaties. It highlights how states are revising their models to correct problematic language, integrate sustainable development goals, and limit the use of investor-state dispute settlement (ISDS). The text details specific national approaches from Canada, the Netherlands, India, Nigeria, and Brazil, while noting a general trend toward more transparent, consultative processes in drafting these agreements.

• Many countries are revising their approach to international investment governance due to a surge in investment treaty arbitrations that peaked in 2015, leading to actions such as the termination of bilateral investment treaties (BITs) or the denunciation of the ICSID Convention.
• High-income, capital-exporting nations like Canada and the Netherlands are formally reviewing their investment treaty models after recognizing deficiencies in previous versions.
• The Netherlands is the second most frequent home state for ISDS claims globally, with 12 per cent of all known cases filed by investors claiming the Netherlands as their home country, despite the country being party to only 3 per cent of all investment treaties.
• India and Nigeria have developed new-generation national models to address previous failures; India adopted a comprehensive model in 2016, and Nigeria updated its model in 2016 to balance investor rights with the 'right to regulate' and sustainable development goals.
• Brazil has rejected traditional BITs in favor of a unique 'Cooperation and Facilitation Investment Agreements' (CFIA) model, which protects only foreign direct investment, excludes protection against indirect expropriation, and replaces ISDS with centralized grievance mechanisms and state-state cooperation.
• Modern model BITs generally aim to achieve three objectives: refining protection standards to prevent broad arbitral interpretations, incorporating sustainable development elements (such as human rights and environmental commitments), and limiting ISDS in favor of alternative dispute resolution.
• There is a growing trend toward transparency in the development of model treaties, with Canada, the Netherlands, and India utilizing public consultation processes, although some consultations are limited to technical issues rather than fundamental debates.

APA

Brewin, S. (2018). Developing and Negotiating Based on a Model Investment Treaty. International Institute for Sustainable Development. https://www.iisd.org/system/files/publications/model-investment-treaty-webinar-note.pdf

Chicago

Brewin, Sarah. Developing and Negotiating Based on a Model Investment Treaty. International Institute for Sustainable Development, 2018. https://www.iisd.org/system/files/publications/model-investment-treaty-webinar-note.pdf.

Wikipedia

{{cite report |last1=Brewin |first1=Sarah |title=Developing and Negotiating Based on a Model Investment Treaty |publisher=International Institute for Sustainable Development |date=October 2018 |url=https://www.iisd.org/system/files/publications/model-investment-treaty-webinar-note.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{brewin2018developing, author = {Brewin, Sarah}, title = {{Developing and Negotiating Based on a Model Investment Treaty}}, institution = {International Institute for Sustainable Development}, year = {2018}, month = oct, url = {https://www.iisd.org/system/files/publications/model-investment-treaty-webinar-note.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }