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The existing literature on the substantive and procedural aspects of bilateral investment treaties (BITs) relies heavily on investment treaty arbitration decisions as a source of law. What is missing is a comprehensive, analytical review of state practice. This volume fills this gap, providing detailed analyses of the investment treaty policy and practice of nineteen leading capital-exporting states and emerging market economies. The authors are leading experts in government, academia, and private legal practice, and their chapters are largely based on primary source materials. Each chapter provides a description of the regulatory or policy framework governing foreign investment (both inflows and outflows) with a historical presentation of the state's Model BIT; an examination of internal government processes and practices relating to treaty negotiation, conclusion, ratification and record-keeping; and a detailed article-by-article analytical commentary of the state's Model BIT, elucidating the policy behind each provision and highlighting the ways in which the actual investment treaty practice of that state deviates from this standard text. This commentary is supplemented by the case law relevant to that state's investment treaties. This commentary will be of immense assistance to counsel and arbitrators engaged in arguing and determining the proper interpretation of BITs and investment chapters in Free Trade Agreements, and to government officials and scholars engaged in BIT policy formulation and implementation. It will serve as a standard resource for legal practitioners, scholars, policy-makers and other stakeholders in the field of international investment policy, law, and arbitration.
Dr. Chester Brown is Associate Professor at the Faculty of Law, University of Sydney, a Barrister at 7 Selborne Chambers, Sydney, and a door tenant at Essex Court Chambers, London, and Maxwell Chambers, Singapore. He previously served as Assistant Legal Adviser at the Foreign and Commonwealth Office, London, and prior to that he was Senior Associate in the International Law and International Arbitration Group of Clifford Chance LLP, London. He is the author of A Common Law of International Adjudication (OUP, 2007), which was awarded the ASIL Certificate of Merit. He was educated at the Universities of Melbourne, Oxford and Cambridge.
Table of Contents
1. Introduction, Chester Brown and Devashish Krishan
2. Australia, Chester Brown
3. Austria, August Reinisch
4. Canada, Andrew Newcombe and Celine Levesque
5. China, Norah Gallagher and Wenhua Shan
6. Colombia, Jose Antonio Rivas
7. France, Emmanuel Gaillard and Yas Banifatemi
8. Germany, Rudolf Dolzer
9. India, Devashish Krishan
10. Italy, Federico Ortino
11. Japan, Luke Nottage and Shotaro Hamamoto
12. Republic of Korea, Shin Hi-Taek
13. Latvia, Martins Paparinskis
14. NAFTA, Andrea Bjorklund
15. Netherlands, Nico Schrijver and Vid Prislan
16. Russia, Sergey Ripinsky
17. Singapore, Jean Ho
18. Switzerland, Michael Schmid
19. United Kingdom, Chester Brown and Audley Sheppard
20. United States, Jeremy Sharpe and Lee Caplan