Awaiting the Trans-Pacific Partnership, by Antonio Delgado

Last month, the leaders of Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States and Vietnam announced that the negotiations for completion of the Trans-Pacific Partnership (“TPP”) were on track. Progress was made on the legal texts and annexes that will regulate a diverse range of sectors that include goods and services, investment, financial services, government procurement, and temporary entry markets. The focus of the TPP is now aimed at resolving the outstanding issues and achieving a final agreement by the end of this year.[1] Continue reading

New ICSID Statistics (2013-2) made public, by José Ángel Rueda

On 31 July 2013 ICSID issued its updated caseload statistics on cases registered and administered by the Centre.[1] As of 30 June 2013 ICSID had registered 433 cases under the 1965 ICSID Convention and the 1978 Additional Facility Rules (AFR). It had registered 14 cases in 2013 until the closure of that document.[2]  Continue reading

Pakistan’s BIT Dilemma: Understanding Why a ‘Model’ BIT may not be the Best Approach, by Nida Mahmood

Pakistan is on its way to develop its own ‘Model’ Bilateral Investment Treaty (BITs) as the standard international investment treaty to seek and attract more foreign investment.[1] Such ‘Model’ investment treaties usually contain blanket and comprehensive provisions to cater to the diverse relationships that a State may have with other potential capital exporting States and in this way, a standard-form contract-like treaty is perpetuated to achieve a harmony in terms of obligations that a State is prepared to undertake as regards investments to and from its territory.  Continue reading

South Africa denounces BIT with Spain, by José Ángel Rueda

On 23 June 2013 South Africa sent a notification to Spain in order to denounce their BIT.[1]

The BIT was signed ad referendum in Pretoria on 30 September 1998 and entered into force on 23 December 1999.[2] According to Article XII(1) the BIT was in force for an initial period of 10 years (until 23 December 2009) and from then onwards it was in force for consecutive 2-year periods (the first one, from 24 December 2009 until 23 December 2011; the second one, from 24 December 2011 until 23 December 2013; and so on).

Article XII(2) allows any State party to denounce the BIT by a notification in writing six months before the date of expiry of the BIT. As the second 2-year period referred to above lasts until 23 December 2013, South Africa had until 23 June 2013 to send its notification. It did so on time.

In any event, as usual in BIT practice, Article XII(3) contains a survival clause whereby the BIT will be in force for an additional 10-year period from 23 December 2013 for all investments made or acquired before that date.

We understand this move by South Africa is related to a hot debate about BITs within that country.[3] We will be happy to receive comments from South Africa on this topic.[4]

[1] See, footnote 7 (in Spanish).

[2] See BOE (Spanish official gazette) no. 26, 31 January 2000.

[3] See “Bilateral Investment Treaty Policy Framework Review”, Executive Summary of Government Position Paper, Pretoria, June 2009, Government Gazette, 7 July 2009.

[4] See a previous post by Azwimphelele Langalanga, “South African Courts and the Expropriation Conundrum: Caveat Foreign Investor”, 31 May 2013, at

Joint statement between the EU and Bangladesh after the deadly Savar factory collapse, by José Ángel Rueda

On 28 May 2013 EU’s Trade Commissioner Karel de Gucht and Bangladeshi Foreign Minister Dr. Dipu Moni issued a joint statement[1] regarding the deadly collapse of a garment factory in Savar, near Dhaka, on 24 April 2013 where 1,129 people were killed and some 2,500 were injured.[2] The message is crystal clear for both exporters and importers of garment products manufactured in Bangladesh in particular and in developing countries in general:

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South African Courts and the Expropriation Conundrum: Caveat Foreign Investor, by Azwimphelele Langalanga


A milestone decision was passed down by South Africa’s premier court seated in Braamfontein, Johannesburg. This was in the case of Agri South Africa v. Minister for Minerals and Energy.[1] It is a case testing the legality of the Mineral and Petroleum Resources Development Act (MPRDA) 28 of 2002 (as amended), particularly its black empowerment provisions. Simply put this piece of legislation had the effect of vesting all mineral ownership to the state. Before it came into being, mineral resources underground were owned by the land owners who in most instances happened to be farmers.[2] These farmers had inter alia the right to exploit the minerals and to lease such mining rights to anyone on their terms. The claimants challenged it on the basis that it expropriated their property. The court ruled that there is a difference between expropriation and deprivation. And basically provided that the concept of indirect expropriation did not apply in South African law.

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EU Commission proposes to open negotiations for a BIT with China, by José Ángel Rueda

On 23 May 2013 the European Commission decided to ask EU Member States for their agreement on a mandate to open negotiations on an investment agreement with China.[1] As the Commission has underlined, “this is the first ever proposal for a stand-alone investment agreement since foreign direct investment became the exclusive competence of the EU under the Lisbon Treaty” on 1 December 2009.

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List of pre-2009 extra-EU BITs published by the European Commission, by José Ángel Rueda

On 8 May 2013 the Official Journal of the European Union has published the List of the bilateral investment agreements referred to in Article 4(1) of Regulation (EU) No 1219/2012 of the European Parliament and of the Council establishing transitional arrangements for bilateral investment agreements between Member States and third countries.[1]

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Signature of Canada-Nigeria FIPA, by José Ángel Rueda

Here in Europe we are longing for the publication by the European Union of the list of pre-2009 BITs that its 27 Member States want to maintain in force or permit to enter into force with third States pursuant to Articles 2 and 4(2) of Regulation 1219/2012.[1] This list will clarify the status of some 1,200 BITs entered into by EU Member States between 1959 and 2009 – undoubtedly a major event for international investment law.[2]  Continue reading

UNCTAD publishes new statistics on investment treaty arbitration, by José Ángel Rueda

UNCTAD has published a new edition of its statistics on investment treaty arbitration. Despite its title, “Recent Developments in Investor-State Dispute Settlement (ISDS)”,[1] it just refers to investment treaty arbitration, as stated above, because an inquiry on investment disputes arising out solely of a contract between a foreign investor and a State entity is almost impossible to achieve (arbitration courts apply strict confidentiality on these matters).   Continue reading