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The conflicting views of developed and developing nations on the question of compensation for expropriation is evidence of the predictable fact that one's view regarding the appropriate standard of compensation is determined by whether one is a net importer or exporter of investment capital. It is the direction of the flow of investment capital and wealth and power disparities[31] between developed and developing countries that gives them different perspectives on questions of investment regulation.[32]
Consider the behavior of developed states on the topic of expropriation and dispute settlement. The publicly stated view and the behavior of these countries have remained quite consistent over the years. [33] These countries have, over all relevant periods, insisted that expropriation of property owned by foreigners should be permitted only if it is for a public purpose and only if accompanied by prompt, adequate, and effective compensation. In other words, they have advocated international rules to protect the investment made by their nationals.
LDCs, in contrast to developed states, have exhibited behavior that is, at first glance, contradictory. In public statements, LDCs as a group have condemned the Hull Rule as an infringement on the sovereignty of the expropriating nation and have called for a less exacting expropriation standard. In fact, as is discussed below, LDCs have objected so strenuously to the Hull Rule that they have succeeded in calling into question its validity as customary international law. In their private behavior, however, many LDCs, have agreed to treaties that not only implement the Hull Rule, but that go much further in providing protections for foreign investors.[34]
Consensus surrounding the Hull Rule was possible during the first half of this century at least in part because many countries that currently oppose the rule were colonies rather than sovereign states. While under the control of colonial powers, the views of these states were, of course, controlled by their colonial masters, who supported a regime of full compensation. Furthermore, colonies were not recognized as independent states, implying that even if they had an independent view of how international law should protect investors, that view would have no impact on the establishment of international customary law. As decolonization took place, LDCs were able to voice their own views and those views became relevant to the determination of international law. As the number of independent former colonies grew, their opinions carried greater weight in the international arena, and as they questioned international norms that had previously been considered unobjectionable, the status of those norms changed.[35]
An early demonstration of the view that would eventually find its way to the floor of the United Nations General Assembly is provided by the government of Mexico during discussions with the Untied States regarding Mexican expropriations of property in the first half of this century.[36] In a note dated August 3, 1938, the Mexican Minister of Foreign Affairs stated:
My Government maintains . . . that there is in international law no rule universally accepted in theory nor carried out in practice, which makes obligatory the payment of immediate compensation nor even of deferred compensation, for expropriations of a general and impersonal character . . . .[37]
It was not until after the Second World War, however, that expropriation and conflict over expropriation became common.[38] Nationalizations and expropriations in the form of direct takings became much more common as newly communist countries in Eastern Europe and, later, the People's Republic of China, seized property, and as former colonies became newly independent states and sought to flex their newfound sovereignty. Such expropriations continued into the 1970s.[39] The home countries of the investors who suffered losses due to expropriations reacted by attempting to discourage and punish such behavior. Whether for this or other reasons, the period of simple takings turned out to be relatively short lived. By the early 1980s, acts of direct and explicit taking of property had become very rare. 40 In fact, from 1984 to 1992, one observer counts only 3 expropriations.[41]
Throughout this period, the majority of the developing world supported a less stringent compensation requirement for expropriations than the Hull Rule's "prompt, adequate, and effective" standard. The inevitable disputes that arose following expropriations proved difficult to resolve. Without an existing procedure to deal with such disputes, and without a mechanism to resolve the conflicting views of LDCs and developed countries, the international community appeared to be at an impasse. The lines of disagreement were clear; capital importers supported a less stringent rule and capital exporters supported the Hull Rule. There seemed to be no room for negotiation. In the battle for international legitimacy, both sides of the debate claimed that customary international law was on their side. The developed world pointed to the history of the Hull Rule and to the support it had received both in practice and in writings by commentators. In response, LDCs pointed out that practice had not always accorded with the Hull Rule and that, in any event, the rule simply lacked the broad international support that customary international law requires. Although the developed world denied the point, it seemed that the debate itself was undermining the claim that the rule retained its status as customary international law. Although one can always ask how much practice is necessary and how many countries must feel legally bound in order for a norm to become customary law, as the number of countries against the Hull Rule increased, the claim that it was customary law would prove unpersuasive.
While the debate over the status of customary international law was ongoing, LDCs used the strength of their numbers to undermine the developed states' position. From the early 1960s through the mid 1970s, the General Assembly of the United Nations -- dominated by LDCs -- passed a series of resolutions intended to emphasize the sovereignty of nations with respect to foreign investment. First, in 1962, the Resolution on Permanent Sovereignty over Natural Resources (Resolution 1803) was passed.42 This resolution provided that in cases of expropriation, "appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty" must be paid.[43] Resolution 1803 used the term "appropriate" compensation, which has since come to mean a standard that is lower than the traditional Hull Rule of "prompt, adequate and effective" compensation. In the 1960s, however, advocates of the Hull Rule were not prepared to concede that the Hull Rule had lost its status as customary law. The United States, for example, chose to interpret "appropriate" to mean "prompt, adequate and effective."[44] Though perhaps not the fairest reading of the resolution, such an interpretation allowed the United States to persist in its claim that the Hull Rule remained international law.
In 1973, the General Assembly adopted another Resolution on Permanent Sovereignty over Natural Resources ("Resolution 3171"),45 which removed any doubt that may have existed about whether or not the Hull Rule was included in the term "appropriate." The resolution stated, among other things, that:
the application of the principle of nationalization carried out by States, as an expression of their sovereignty in order to safeguard their natural resources, implies that each State is entitled to determine the amount of possible compensation and the mode of payment, and that any dispute which might arise should be settled in accordance with the national legislation of each State carrying out such measures . . . . [46]
Resolution 3171 made absolutely clear that the General Assembly, dominated by developing countries, supported a rule under which expropriation was permitted with less than full compensation. At this point, it would have been difficult to make a persuasive argument that the Hull Rule retained its status as customary international law. With 109 countries[47] voting in favor of a resolution contradicting the Hull Rule, it is simply not plausible to claim that it remained a general practice and that it was considered legally binding.[48]
In May of 1974, the General Assembly went a step further, declaring a New International Economic Order in Resolution 3201.49 This resolution stated that every state enjoys:
[f]ull permanent sovereignty over its natural resources and all economic activities. . . . [E]ach State is entitled to exercise effective control over them and their exploitation with means suitable to its own situation, including the right to nationalization or transfer of ownership to its nationals . . . . No State may be subjected to economic, political or any other type of coercion to prevent the free and full exercise of this inalienable right. 50
Note that Resolution 3201 considers unacceptable any form of sanction on a country that has expropriated the assets of an investor. This resolution, therefore, seeks to undermine one of the few mechanisms that might enforce a rule against expropriation, whether it be the Hull Rule or the standard of "appropriate" compensation favored by many LDCs. In addition, this resolution, like the earlier United Nations General Assembly resolutions, does not even recognize the existence of an international obligation of repayment. Although the resolutions are not inconsistent with such an obligation, they do not explicitly recognize one, except in suggesting that the resolution of the dispute should be consistent with domestic legislation.
Finally, in December of 1974, the General Assembly adopted Resolution 3281, the Charter of Economic Rights and Duties.[51] The Charter states that each state has the right:
(a) To regulate and exercise authority over foreign investment within its national jurisdiction in accordance with its laws and regulations and in conformity with its national objectives and priorities. . . .
(b) To nationalize, expropriate or transfer ownership of foreign property, in which case appropriate compensation should be paid by the State adopting such measures, taking into account its relevant laws and regulations and all circumstances that the State considers pertinent. In any cases where the question of compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing State and by its tribunals, unless it is freely and mutually agreed by all States concerned that other peaceful means be sought on the basis of the sovereign equality of States and in accordance with the principle of free choice of means.[52]
The Charter served to further emphasize the sovereignty of LDCs with respect to their treatment of foreign investors, including over the dispute resolution process. Essentially, the Charter puts the host country government in full control and places the investor at the mercy of that government.53
Taken together, the above resolutions offer powerful evidence that developing countries, when acting as a group, prefer a regime under which they are able to expropriate property when they feel it is justified and to pay what they determine to be appropriate compensation. These repeated efforts to establish the "appropriate compensation" standard represent a frontal assault on the traditional norm of full compensation. The developing states undertook an active campaign to change international customary law. This point is important because it demonstrates a vigorous opposition to the Hull Rule. The resolutions also demonstrate a preference among developing states for a dispute resolution system that relies on local courts rather than international fora. They seek control over the entire relationship between investor and host; essentially rendering it a matter of domestic law rather than international law.[54]
All of the actions described in this section and taken by developing states rely on the notion of state sovereignty in order to support their view that international law provides only minimal protections against expropriation. The actions discussed succeeded, by demonstrating a lack international consensus, in undermining the Hull Rule's status as customary international law. Once it became clear that the Hull Rule was no longer customary law, which certainly occurred in the wake of Resolution 3171, and may have occurred much sooner, there was no other source of international law to govern international investment. There was nothing to prevent individual states from determining what constitutes appropriate compensation.[55]
The behavior of developing countries, as manifested through the United Nations Resolutions and calls for rejection of the Hull Rule, stands in stark contrast to their behavior as manifested through the signature of bilateral investment treaties. In this section, we will briefly review the history of these treaties and consider their most important terms. In a very short period of time, BITs have become an important part of the foreign investment landscape. By 1991, well over 400 BITs had been signed 56 with more than ninety developing states and "virtually every developed state" being party to at least one such treaty.[57] By mid 1996, over one thousand such treaties had been signed, and almost every country on the globe has signed at least one such treaty. [58] Regardless of the impact that these treaties have on customary international law,[59] they represent an important part of the international investment landscape in their own right.
The United States BIT program has existed for almost twenty years, [61] and it has been fifteen years since the first American BIT treaty was signed with Egypt.[62]Bilateral Investment Treaties, however, have been part of the international landscape for a considerably longer period; as have American treaties that include investment protections. This section will review the origins of the BIT, both in the United States and elsewhere.
The United States began to sign treaties of "Friendship, Commerce and Navigation" (FCNs), the precursor to the BIT, soon after the birth of the country. [63] FCNs were a common part of United States policy toward outward foreign investment until after the Second World War.[64] As the name of these treaties suggests, and contrary to the BIT, Treaties of Friendship, Commerce and Navigation were not exclusively, or even primarily, vehicles to protect investments abroad. Nevertheless, the treaties included some protections for American investors in foreign countries, including a prohibition on expropriation without compensation. The primary purpose of these agreements, however, was the promotion of international trade. With the rise of the General Agreement of Tariffs and Trade ("GATT") after World War II, the international law of trade came to be governed by this multilateral agreement, reducing the need for FCNs. Because many of the objectives of the FCNs were met by the GATT, the treaties were supplanted by it and, by the mid 1960s, the American FCN program had wound down.
At about the same time, other countries were discovering and implementing a new instrument for the protection of foreign investment -- the BIT. By the time the American FCN program had completely shut down, several European countries were busy negotiating and signing bilateral investment treaties with developing countries. Unlike the FCNs, these treaties focused exclusively on the protection of investment -- a topic not covered by GATT. The first such treaty was between West Germany and Pakistan, and was signed in 1959. [65] Switzerland was also an early participant in BITs[66] and other European countries began to establish BITs in the late 60s.[67] Eventually, Japan and the United States would join the growing number of developed states with BIT programs aimed at developing states.[68]
The United States, a latecomer to the BIT, established its BIT program in 1977.[69] The program was put in place with a number of specific objectives regarding the protection of foreign investment overseas. These goals were (1) to bolster the claim that the Hull Rule remained customary international law by establishing a network of treaties that included this principle;[70] (2) to protect current and future foreign investment from host government behavior; and (3) to provide a mechanism for resolving investment disputes that did not rely on either local courts or direct involvement by the United States Government.[71]
As was true of most BITs, the developed partner to these agreements -- the United States -- initiated the process. Indeed, the United States made considerable preparations prior to the start of negotiations with potential BIT partners. With the objectives of the BIT program in mind, the United States prepared a prototype BIT which was to form the foundation for negotiations with potential BIT partners.[72] The original model text was completed in 1981[73] and has since been modified several times. [74] Although the U.S. treaty is, in principle, open to negotiation, the final BIT is usually very similar to the model treaty, demonstrating the strong negotiating position of the United States. While some negotiation is possible on some issues, the United States is committed to the basic structure of the model treaty and will only accept relatively small changes.[75] In fact, looking beyond BITs signed by the United States to those of other developed countries reveals that BITs around the world are bear a strong resemblance to one another.[76] Typical provisions include terms governing compensation for expropriation, the repatriation of profits, dispute settlement procedures (usually through some neutral forum), national treatment requirements, and "most favored nation" requirements. In order to provide greater context, we will briefly review the main elements of the U.S. model treaty.
The model United States Bilateral Investment Treaty consists of a preamble and sixteen articles. Article I defines certain key terms. Of greatest interest for present purposes is the definition of "investment," which is defined to include:
every kind of investment owned or controlled directly or indirectly by that national or company, and includes investment consisting or taking the form of:
(i) a company;
(ii) shares, stock, and other forms of equity participation, and bonds, debentures, and other forms of debt interests, in a company;
(iii) contractual rights, such as under turnkey, construction or management contracts, production or revenue-sharing contracts, concessions, or other similar contracts;
(iv) tangible property, including real property; and intangible property, including rights, such as leases, mortgages, liens and pledges;
(v) intellectual property . . .
(vi) rights conferred pursuant to law, such as licenses and permits.
Notice the broad reach of this definition. It covers not only hard investments such as real estate and equipment, but also financial assets (stocks, bonds, etc.) and, critically, contractual rights and rights conferred by law. This definition is important because, as mentioned above,77 "hard-core" expropriation that involves the outright seizure of assets has become quite rare. The definition of investment, however, protects not only against these seizures, it also protects against the "breach" of agreements signed between the host and the investor and the withdrawal of licenses and other such rights. By defining investment in this way, the United States is essentially making any agreement between the host and the investor part of the "investment." The relationship between the host and the investor is made to look very much like the relationship between two private contracting parties within a single country. It is important to keep this definition in mind as one examines the other terms of the BIT. As will be discussed below, the protection of contractual rights is one of the most interesting and potentially influential aspects of the BIT. Indeed, it is the definition of investment that makes virtually any dispute between host and investor -- at least any dispute based on negotiated agreement between the two -- a matter of international law. Combined with the dispute settlement provisions, the definition of investment effectively removes these disputes from the legal control of the host -- something customary international law never did.
Article II attempts to provide investors with a certain minimal level of protections that are intended to cover all investments, regardless of the agreement that the host and the investor reach. In other words, taken as a whole, Article II serves to establish the minimum standards of treatment required from the host country. It ensures that investors will not suffer discriminatory treatment relative to either nationals of the host country or other foreign investors, and it emphasizes that the host's conduct must conform to international law
Article II(1) of the treaty requires that foreign investment be accorded national treatment or most favored nation treatment, whichever is more favorable to the investment.[78] Exceptions to this requirement are permitted for certain sectors that are subject to negotiation and inclusion in the Annex to the treaty.[79]
Article II(3) is intended to ensure that investment from a BIT partner receives the basic protections of international law. Specifically, Article II(3)(a) provides that the host must provide "fair and equitable treatment and full protection and security and shall in no case accord treatment less favorable than that required by international law."[80] Although Article II does not, in principle, change any substantive rights, it at least brings those protections that exist under international law within the reach of the treaty and, therefore, within the reach of the dispute resolution mechanism. Also in subpart three is a prohibition on unreasonable or discriminatory measures that impair the management, conduct, operation, and sale or other disposition of investments.[81] Article II(4) requires the host country to "provide effective means of asserting and enforcing rights."
Article III deals with the expropriation of investments. Because "investment" is defined so broadly in Article I, however, the section on expropriation applies to any number of actions that a host may take in violation of an agreement with an investor. Section 1 prohibits expropriation or nationalization "directly or indirectly," "except for a public purpose; in a non-discriminatory manner; upon payment of prompt adequate and effective compensation; and in accordance with due process of law . . . ."[82] This clause is, of course, a restatement of the Hull Rule. Because of the context in which the rule applies, however, this clause imposes obligations on host governments that far exceed the traditional Hull Rule. Because it applies not only to the expropriation of assets, but also to "breach" of an agreement, a host may be required to make "prompt, adequate, and effective" compensation for actions that, under the customary law version of the Hull Rule, would not have been considered expropriations. Also, notice that dispute resolution mechanisms discussed below imply that neutral parties can be called upon to establish the amount of compensation that is required. Given the expansive definition of investment, this section provides tremendous security for investors, both in terms of their hard assets and in the rights they have acquired through contract with the host government.
Article V governs the transfer of assets to and from the host country. It requires that the host allow free transfer both into and out of the country as long as they relate to covered investments.[83] For example, the host is not permitted to restrict the repatriation of profits.[84]
Article VI prohibits performance requirements such as local content requirements, technology transfer requirements, and so on. Notice that rather than being an alternative to the national treatment requirement, the prohibition against performance requirements is an additional obligation. Therefore, even if domestic firms must meet, for example, a local content regulation, Article VI makes it a violation of the BIT to demand the same from a foreign investor.
Articles IX and X provide a dispute settlement mechanism to govern relations between the host and the investor. Under these provision, arbitration is available to settle disputes and is binding on both parties. This mechanism effectively solves the dynamic inconsistency problem discussed in Section IV of this paper because it allows disputes to be settled in binding fashion in a neutral forum. It thus becomes possible for a country to commit itself by contract in a manner that can be enforced through arbitration.
The above discussion demonstrates that BITs offer foreign investors much greater protection that the Hull Rule ever did. They do so primarily by providing a mechanism through which a potential investor and a potential host can establish a contract that is binding under international law. In addition, the provision of dispute settlement procedures offers investors a disinterested forum in which they can be heard and whose decisions bind the host. The other provisions of BITs offer substantive protections such as national treatment, most favored nation treatment, free transfer of assets, and a prohibition on performance requirements. Finally, not to be forgotten is the fact that BITs reproduce the Hull Rule's requirement of prompt, adequate, and effective compensation for expropriation, including "expropriations" that fall short of a direct taking.
[31] Including the legacy of colonialism.
[32] Neither LDCs nor developed countries can be considered a homogeneous category with respect to wealth or any other variable. The above categorization is admittedly crude and imperfect, but it provides a helpful method of identifying two sets of countries that have divergent attitudes toward and goals for foreign direct investment.
[33]See supra Section III.
[34] See infra pp. 28-32.
[35] Recall that one of the sources of international law is "custom," which requires (1) a general practice; (2) that is accepted as law. For a detailed treatment of the sources of international law, including customary international law, see HENKIN, PUGH, SCHACTER, SMIT, supra note 28, at 35-136. Prior to the independence of their colonies, capital exporters could show a "general practice" without reference to the views and attitudes of those colonies because the latter were not considered international actors. With the independence of the colonies, however, capital importers gained, simply through a change in status, a much larger role in the determination of a "general practice." For this reason, customary intentional law that they did not support had faced difficulties demonstrating the required practice.
[36] See supra page 11-13 (presenting the American response to these discussions).
[37] HACKWORTH supra note 12, at 657.
[38] See LIPSON, STANDING GUARD, PROTECTING FOREIGN CAPITAL IN THE NINETEENTH AND TWENTIETH Centuries (1985); Detlev F. Vagts, Foreign Investment Risk Reconsidered: The View from the 1980s, 2 ICSID REV. 1 (1987).
[39] For a brief summary of some of the expropriations that took place in the 30 years that followed World War Two, see STEINER, VAGTS, & KOH, supra note 12 at 466-67.
40 The reasons for the rise and fall of the use of outright seizures as a policy tool are beyond the scope of this paper, as is the question of whether we should expect expropriations to return. Commonly cited reasons for the rapid fall in the rate of seizures include the success of LDCs in removing control of property from the hands of former colonial powers and their citizens, a fall in the popularity of state ownership, a desire to attract new investment, a belief among LDCs that they could benefit from investment as long as it was regulated, improvement in the managerial and administrative expertise of LDC governments, changed international economic conditions, and changed behavior on the part of investors who adopted investment strategies that were less vulnerable (e.g., joint ventures, structures that left certain important operations outside of the host country, strategically placed management from the home country without whom the value of assets would fall substantially, and so on.). See e.g., Michael S. Minor, The Demise of Expropriation as an Instrument of LDC Policy, 1980-92, J. INT'L BUS. STUD. First Quarter, 1994, 2-6; Michael S. Minor, LDCs, TNCs and Expropriation in the 1980s, 25 CENTRE ON TRANSNATIONAL CORPORATIONS REPORTER 53-55 (Spring 1988); Stephen J. Kobrin, Testing the Bargaining Hypothesis in the Manufacturing Sector in Developing Countries, 4 INT'L ORG. 609 (1987).
[41] See Minor, The Demise of Expropriation as an Instrument of LDC Policy, 1980-92, supra note 40, at 5 tbl. 2. Note that the definition of expropriation is critical. Minor does not actually count expropriations, but rather counts "acts" of expropriation. "An act is applicable to all of those firms taken in the same industry in the same country in the same year." Id. at 2. He defines expropriation as "the forced divestment of equity ownership of a foreign direct investor." (citations omitted). Id. Because this paper focuses not only on direct takings, but also on other conflicts between host countries and investors, it should not be concluded form Minor's data that the issues discussed in this paper are no longer pressing.
42 G.A. Res. 1803 (XVII), 17 U.N. GAOR, Supp. (No. 17) 15 U.N. Doc. A/5217 (1962), reprinted in 2 I.L.M. 223 (1963).
[43] See Protection of Private Property Investment Abroad, a Report by the Committee on International Trade and Investment, Section on International and Comparative Law, American Bar Association 18 (1962).
[44] See HENKIN, PUGH, SCHACHTER, & SMIT, supra note 28, at 1053.
45 G.A. Res. 3171, U.N. GAOR, 283d Sess., Supp. No. 30, at 52, U.N. Doc. A/9030 (1974).
[46] Id. The vote was 109 to 1, with 17 abstentions. The United Kingdom voted against the resolution, while most developed countries abstained. See HENKIN, PUGH, SCHACTER, & SMIT, supra note 28, at 1052-53.
[47] See Id.
[48] See, e.g., Dozer, supra note 4, at 561-62 ("the continuing validity of a rule of customary international law requires that a clear majority of states view this rule as legally binding").
49 G.A. Res. 3201, 6th Spec. Sess., Supp. No. 1 at 3, U.N. Doc. A/9559 (1974), reprinted in 13 I.L.M. 715 (1974).
50 Id.
[51] G.A. Res. 3281, 29 U.N. GAOR Supp. (No. 31) at 50, 51-55, U.N. Doc. A/9631 (1974) reprinted in 14 I.L.M. 251, 252-60 (1975).
[52] Id. ch. 2, art. 2. The vote on this section of the Charter of Economic Rights and Duties was 104 in favor and 16 against, with 6 abstentions.
53 One should not view such a position as more radical than it is, however. Keep in mind that in a domestic setting, investors are not protected by any form of international law. Note also that the host country is constrained by at least two principles. First, the notion of "appropriate compensation," although vague, has some significance. There is little evidence that anybody seriously advocates a requirement of zero compensation. See SORNARAJAH, supra note 4, at 209 & n.58 (stating that the positions of developing countries have ranged from of zero compensation for which there is now no support, to "the generally accepted view that `appropriate' compensation must be paid." ). Second, even without any legal limitations on the actions of host countries, reputational concerns may offer investors some protection. A host wants to be seen as a favorable place to invest and so, in order to encourage future investment, may refrain from trying to extract value from existing investors.
[54] One useful way to think of the fight over investor protection is in terms of the distinction between domestic law and international law. If the investor-state relationship is considered a matter of domestic law, host governments can behave as they please toward investors. If it is a matter of international law, host countries are constrained by international norms.
[55] The collapse of the Hull Rule has left a gap that has not been filled by any other rule, including a rule of no compensation. "[T]he present state of customary international law regarding expropriation of alien property has remained obscure in its basic aspects." Dozer, supra note 4, at 553.
56 See UNITED NATIONS CENTER FOR TRANSNATIONAL CORPORATIONS & INTERNATIONAL CHAMBER OF COMMERCE, BILATERAL INVESTMENT TREATIES -- 1951-1991 (1992); MICHAEL A. GEIST, Toward a General Agreement on the Regulation of Foreign Direct Investment, 26 LAW & POL'Y INT'L BUS. 673, 684 (1995).
[57] See Mohamed I. Khalil, Treatment of Foreign Investment in Bilateral Investment Treaties, 7 ICSID REV. -- FOREIGN INV. L.J. 332 (1992); Geist, supra note 56, at 684.
[58] See RUDOLF DOZER & MARGRETE STEVENS, BILATERAL INVESTMENT TREATIES (1995)
[59] See infra Pat VI.B.
[60] For a current and comprehensive discussion of BITs and their content, see DOLZER & STEVENS, supra note 58.
[61] See Kenneth J. Vandervelde, U.S. Bilateral Investment Treaties: The Second Wave, 14 MICH. J. INT'L L. 621, 624 (1993) ("The BIT program was launched in 1977 . . . .")
[62] See Jose Luis Siqueiros, Bilateral Treaties on the Reciprocal Protection of Foreign Investment, 24 CAL. W. INT'L L.J. 255, 272 Annex A (1994).
[63] See Kenneth J. Vandervelde, The BIT Program: A Fifteen-Year Appraisal, in The Development and Expansion of Bilateral Investment Treaties, 86 AM. SOC'Y INT'L L. PROC. 532, 533 (Gennady Pilch, Reporter) [hereinafter, Bit Program] (1992).
[64] Id.
[65] See UNITED NATIONS CENTER FOR TRANSNATIONAL CORPORATIONS AND INTERNATIONAL CHAMBER OF COMMERCE, BILATERAL INVESTMENT TREATIES 1959-1991 ANNEX at 15 (1992); Vandervelde, Bit Program, supra note 63, at 534 ("between 1962 and 1972, Germany concluded forty-six of these agreements").
[66] Switzerland signed 21 BITs prior to 1972. See UNITED NATIONS CENTER FOR TRANSNATIONAL, BILATERAL INVESTMENT TREATIES ANNEX I at 148-49 (1988);
[67] See Robin, supra note 26, at 941 ("[I]n the late 1960s and early 1970s, France, the United Kingdom, the Belgo-Luxembourg Economic Union, the Netherlands, and Norway" began BIT programs).
[68] Japan did not sign a BIT until 1977 and the United States did not sign one until 1982. Both signed their initial treaties with Egypt. See UNITED NATIONS CENTER FOR TRANSNATIONAL CORPORATIONS AND INTENTIONAL CHAMBER OF COMMERCE, supra note 65.
[69] See supra note 61.
[70] The ability of capital exporting countries to claim the Hull Rule as customary international law was in serious doubt by the late 1970s. See supra Part III.A.
[71] For a more detailed discussion of these goals, see Vandervelde, The BIT Program, supra note 63, at 534-35.
[72] Although it is beyond the scope of this paper to conduct a serious study of the advantage a country has if it is able to create the initial draft agreement, there is no question that the United States (and other developed countries that prepare a model treaty prior to negotiations), by starting with a document that meets all of their key requirements, is able to frame the tone and substance of the negotiations.
[73] See Vandervelde, supra note 61, at 642.
[74] The basic model text was in place by 1984, and has undergone few significant changes since then. See id. at 627 (stating that the original model text was revised in 1982, 1983, 1984, 1987, 1991, and in 1992 but that changes since 1984 have been relatively minor). Several different versions of the model U.S. BIT are reprinted in KENNETH J. VANDERVELDE, UNITED STATES INVESTMENT TREATIES: POLICY AND PRACTICE A-1 to - A4 (1992). For the draft treaties of several countries, see UNITED NATIONS CENTRE ON TRANSNATIONAL INVESTMENT TREATIES, BILATERAL INVESTMENT TREATIES 175-83 (Annex IV) (Netherlands), 184-95 (Annex V) (United States), 196-210 (Annex VI) (Asian-African).
[75] More generally, the developing country, faced with a (nearly) take-it-or-leave offer from a developed country, has little choice but to consent. It is, therefore, not surprising that all the BITs of any given developed country tend to be so similar.
[76] See DOLZER & STEVENS, supra note 58, at v ("a great deal of uniformity exists in model investment treaties.").
77 See supra page 17.
[78] "With respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of covered investments, each Party shall accord treatment no less favorable than it accords, in like situations, to investments in its territory of its own nationals or companies (hereinafter "national treatment") or to investments in its territory of nationals or companies of a third country (hereinafter "most favored nation treatment"), whichever is most favorable (hereinafter "national and most favored nation treatment")." United States Model Treaty, Art. II(1), reproduced in VANDERVELDE supra note 74.
[79] Id. Art. II(2).
[80] Id. Art. II(3)(a).
[81] Id. Art. II(3)(b).
[82] Id. Art. III(1).
[83] "Each party shall permit all transfers relating to a covered investment to be made freely and without delay into and out of its territory." Id. Art. V(1).
[84] Some exceptions to this provision are made for "equitable, non-discriminatory and good faith application of [the host's] laws relating to: (a) bankruptcy, insolvency or the protection of the rights of creditors; (b) issuing, trading or dealing securities; (c) criminal or penal offenses; (d) ensuring compliance with orders or judgments in adjudicatory proceedings." Id. Art. V(4).
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