The Significance of South-South BITs for the International Investment Regime: A Quantitative Analysis

Poulsen, Lauge Skovgaard | January 1, 2010

Initially, bilateral investment treaties (“BITs”) were intended as legal instruments to promote and protect investments from rich capital exporting states to the developing world. While BITs signed between developing countries (hereinafter South-South BITs) began to emerge from the mid-1960s onwards with the 1964 Kuwait-Iraq BIT, a typical BIT was until recently negotiated between a developed and a developing country (hereinafter North-South BITs). In order to examine these questions, this paper will investigate whether there are systematic differences in investment-rule making between South-South and North-South BITs. As noted by UNCTAD in its cursory review of South-South BITs, such an analysis has to be comprehensive and detailed enough to credibly identify whether or not South-South BITs in fact incorporate specific features. Accordingly, this paper will utilize a newly constructed database with 303 BITs signed by 101 countries from 1994 to 2006 analyzed according to a set of quantitative indicators of investment provisions, which in turn allows large-sample statistical analyses. Space constraints naturally preclude a comprehensive examination of the similarities and differences between all substantial and procedural BIT provisions. The focus is therefore on two clauses, which have often been in dispute between developing countries and developed countries in multilateral discussions on investment rules in the past, namely (post-entry) national treatment provisions and provisions on repatriation of investment-related funds.