Repenser les lois nationales sur l’investissement

The report examines national investment laws as versatile policy tools, tracing their evolution from 1950s development-focused laws to the 1980-2010 trend of aligning national legislation with international investment treaties. It identifies seven primary functions of contemporary investment laws: governing admission, managing incentives, facilitating investment, providing legal protection, managing disputes, specifying investor obligations, and supervising investments. The document argues against a 'one-size-fits-all' model, instead offering a framework for policymakers to align the functions and content of their laws with specific national objectives and sustainable development goals, while warning against the legal and financial risks of incorporating treaty-style protections and prior consent to international arbitration.

• National investment laws have evolved through distinct phases: from 1950-1979, they were primarily driven by domestic policy and development goals; from 1980-2010, they were increasingly redesigned to integrate international standards and align with investment treaties.
• The report identifies seven primary functions that contemporary national investment laws fulfill: governing admission and approval of new foreign investments, granting and managing investment incentives, facilitating investments, guaranteeing legal protection, establishing investor-state dispute management systems, specifying investor obligations and responsibilities, and monitoring and supervising foreign investments.
• There is a significant trend toward 'negative list' approaches for investment admission, where foreign investment is permitted in all sectors except those explicitly restricted, as opposed to 'positive lists' which are now rare.
• Tax incentives are present in at least 80% of the examined investment laws, but the report notes a global shift away from these tools due to their inefficiency in attracting sustainable investment and their high cost to public finances.
• Legal protections in national laws often mirror investment treaties, with the most common being guarantees of compensation for expropriation and the free transfer of funds; however, 'fair and equitable treatment' clauses are rare, appearing in less than 10% of the laws.
• The report warns that granting prior consent to international arbitration within national investment laws creates acute legal and financial risks, similar to those found in old-generation investment treaties.
• Case studies demonstrate that investment laws are shaped by specific national contexts: China uses its law as a tool for national economic reform and to prevent forced technology transfer; Myanmar used its 2016 law to signal a regime shift toward openness; Australia uses its law primarily for investment screening based on national interest; and South Africa uses its law as a partial substitute for terminated bilateral investment treaties.

APA

Bonnitcha, J., Nikiéma, S. H., & John, T. S. (2023). Repenser les lois nationales sur l’investissement. International Institute for Sustainable Development. https://www.iisd.org/system/files/2026-05/rethinking-national-investment-laws-fr.pdf

Chicago

Bonnitcha, Jonathan, Suzy H. Nikiéma, and Taylor St John. Repenser les lois nationales sur l’investissement. International Institute for Sustainable Development, 2023. https://www.iisd.org/system/files/2026-05/rethinking-national-investment-laws-fr.pdf.

Wikipedia

{{cite report |last1=Bonnitcha |first1=Jonathan |last2=Nikiéma |first2=Suzy H. |last3=John |first3=Taylor St |title=Repenser les lois nationales sur l’investissement |publisher=International Institute for Sustainable Development |date=July 2023 |url=https://www.iisd.org/system/files/2026-05/rethinking-national-investment-laws-fr.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{bonnitcha2023repenser, author = {Bonnitcha, Jonathan and Nikiéma, Suzy H. and John, Taylor St}, title = {{Repenser les lois nationales sur l’investissement}}, institution = {International Institute for Sustainable Development}, year = {2023}, month = jul, url = {https://www.iisd.org/system/files/2026-05/rethinking-national-investment-laws-fr.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }