This article explores the negative reaction of developed countries, as host State recipients of foreign investment, when they are faced with the possibility of having its national policies and regulations challenged through investor-State arbitration, a system of adjudication of investment disputes created and promoted by developed countries over time. The discussion about the need and suitability of an investor-State settlement dispute mechanism between developed countries has been particularly relevant in preferential trade agreements involving developed countries, some already in force (like NAFTA and AUFTA), and other in current negotiation (like CETA, TTIP and TPP). The article compares the reaction of developed countries against investor-State arbitration with the past experience of developing countries with respect to investment disputes, particularly considering the experience of Latin American States in cases of 'diplomatic protection' and investor-state arbitration. The article concludes that developed countries can draw lessons from such experience, especially if they want to improve the international settlement of investment disputes, a mechanism that requires a reciprocal commitment from all States in order to be effective.
This article presents the situation of 'Missing Investment Treaties' (MITs), defined as those International Investment Agreements (IIAs) that have been concluded by States, but their texts (and in some cases their existence) are not publicly available or incomplete. In order to determine the number of MITs, we examined the text and language availability of IIAs concluded by countries, that are publicly available, and we complemented that information with country-specific searches from international, governmental and private sources. In turn, the article explores possible explanations to this State's behaviour, using the following questions as guidelines: Why would countries sign agreements that are supposedly negotiated to promote, protect or liberalise foreign investment without making those texts available? If a text of an IIA is publicly available, does it correspond to the language of both contracting parties, only one of them, or of a third country? Is it possible to achieve IIAs' objectives if the text of the treaty is not available, or is it available only in one language? Might there be other reasons to sign these agreements?
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