DUCSU LPR


Revisiting Bangladesh-UK Bilateral Investment Treaty (1980)


Jun 22, 2020

Read Article

Shares: 6



Introduction

As evidence shows historically, the Multinational Corporations (MNCs) have been offered a less attractive growth scheme by South Asian countries during 1980’s and 1990’s in comparison to East Asia and Latin America.[1] The fact that South Asian countries like India, Pakistan, Sri Lanka and Bangladesh emerged as independent states belatedly in 1947, 1948 and 1971 respectively, underlines the discrepancy in terms of creating an atmosphere favorable to the MNCs compared to the other regions of the world. This underpins a major reason why the South Asian region was not much in play like other regions throughout the initial sprung of Bilateral Investment Treaty (BIT) phenomenon.[2] The nationalist weave that emerged with the emergence of Bangladesh in 1971 adversely viewed the access of foreign companies in Bangladesh and as a result, the Foreign Direct Investment (FDI) inflow revolved around 308-356 million USD for almost two decades till 1990s, which started with an initial amount of 0.090 million USD in 1972.[3]

Bangladesh negotiated and signed its first BIT on June 19, 1980[4] with UK which is UK’s second coverage of BIT’s in South Asia preceded by Sri Lanka signed on February 13, 1980.[5] Within 1994, UK was able to bring Nepal, India and Pakistan within its South Asian BIT scheme due to the region’s convergence upon the growing international trend towards openness for Foreign Direct Investments (FDIs) and a changed climate with regional economic integration in South Asia.[6] This article will examine the contents of the Bangladesh-UK BIT (1980) in comparison to other South Asian BIT’s with UK in the backdrop of current international investment standards and practices embraced by developing states. It will also show the different approaches adopted by the UK with regard to different investment protection mechanisms and provisions in the respect BITs concluded between the South Asian countries, namely India, Pakistan, Sri Lanka, Nepal and Bangladesh−all its former colonies.

Definition of Investment under Bangladesh-UK BIT

Article 1 of the Bangladesh-UK BIT defines ‘investment’ as:

every kind of asset and in particular, though not exclusively, includes:

  • movable and immovable property and any other property rights such as mortgages, liens or pledges;
  • shares, stock and debentures of companies or interests in the property of such companies;
  • claims to money or to any performance under contract having a financial value;
  • intellectual property rights and goodwill;
  • business concessions conferred by law or under contract including concessions to search for cultivate, extract or exploit natural resources.[7]

Article 1 commonly incorporates the standard ‘asset based’ definition of investment which is made as wide as possible.[8] The practice of defining ‘investment’ in such a way can be traced back in a series of Federal Republic of Germany BITs signed in early 1960s.[9]  It is not a surprise to see that, such wide definition gives a comprehensive protection scheme to the investors, which in fact was the key reason for initiating BITs by developed countries with developing countries.[10]However, this broadness does not limit the host country’s scope of screening the investment to be protected under the agreement.

Unfortunately, the definition of ‘investment’ prescribed in the Bangladesh-UK BIT (1980) does not provide any such stipulation as to the screening of investment within and thereby the definition outlaws Bangladesh’s chance to avoid investments which does not cater the economic object of the state. Whereas the UK BITs with India as well as Pakistan takes a step in advance by licensing entry rights, subjecting investment further to the national law of the host country.[11] Such limitation as provided in the UK-India BIT (1994)[12]and UK-Pakistan BIT (1994)[13] generates twofold investment flowing from one state party. One licensed by the agreement itself and another which lacks state approval. ICSID observed in Fraport v Philippines (2007), the definition is constrained in order to protect investments, no matter how widely defined, only when satisfies the regulatory authorization of the host country.[14] Thus, M. Sornarajah rightly observed that many developing countries resist imperiling such power of ceasing any external authorization by subjecting investment to the regulatory scheme of the agreement itself.[15] Unevenness of this limitation is attributable to the fact that investment treaties were mainly negotiated to protect the flow of investment from developed countries to developing countries and as such issues of conflict with the interest of investors were kept aside by developing countries to encourage unhindered foreign investment.[16] Bangladesh, already struggling with the post-independence economic turbulence and the political turmoil along with military intervention that it had to face since its independence opted out to device such limitation on investment flow at the early stage of bilateral treaty negotiation. Having restored the private and foreign investor’s rights devising a new investment policy in 1974 and abolishing ceiling for private investment in 1978, Bangladesh clearly vouched the eagerness to attract foreign direct and private investment catering for native economic boost.[17] The government of the newly independent country took all necessary measures to step into the world of competition to attract and foster the flow of FDIs to boost the economic development and prosperity of the country.

Now that wider limitation on the type of investment protected by a BIT is an emerging choice among the developing countries and Bangladesh has already adopted such screening process subject to domestic law in subsequent three BITs including Bangladesh-Thailand BIT (2002)[18], the government needs to rethink to include such limitation and revise the definition of ‘investment’ in Bangladesh-UK BIT.

Promotion of Investment

With regard to entry requirements imposed by host countries, the Bangladesh-UK BIT (1980) provides the host country with ‘policy maneuverability’ to control the type of investment entering its territory[19]. Art. 2(1) of the BIT requires both Bangladesh and UK to generate expedient conditions in own territory which is advantageous for the investors of other state and satisfy the investors to advance capital investment.[20] Such capitals shall be admitted as per the host state’s regulatory scheme existing during the contriving of the agreement. [21] In one hand, this allows Bangladesh to regulate and restrict the right of entry of foreign nationals and companies as per the prevailing domestic law. On the other hand, it requires Bangladesh to put the best possible efforts on the issue of entry serving the interest of UK.[22] Thus, there is a balance between the regulatory mechanisms that Bangladesh may apply and the protection from any future regulations curbing the rights of the British investors in Bangladesh.

Scope of Application

The time dimension of ‘investment’ absent in the Bangladesh-UK BIT (1980) may give rise to uncertainty resulting in to further investment dispute brought against Bangladesh by British investors. In general, it is presumed that the provisions of a given treaty apply to both existing and future investors.[23] If absent, such prior investments may be encompassed by limited protection offered under customary international law.[24]Usually, the treaties which protect investments in a wholesale process irrespective of the time when they were made cater the interest of capital-exporting nations, such as the Sweden Model BIT (2002).[25]Whereas, developing countries have at times restrained the definition to solely forthcoming investments.[26] Except India, neither of the South Asian BIT’s of UK exemplified the time dimension of investment.[27] Though the UK-India BIT (1994) initially covered both existing and upcoming investments within its scope, the India Model BIT (2015) restricted such retrospective effect of the agreement.[28]A rather concession is observed in many BITs devised by Federal Republic of Germany which affords protection to existing investments too, according to the host state’s approval on receiving request from investing state.[29]

If viewed as an investment mechanism, there is little incentive in incorporating investments already existing in the host country. But for catering an unhindered flow of FDI in Bangladesh, existing foreign investors in the country act as prospective future investors and to deny security to their former investments might reduce their confidence in Bangladesh’s investment potential. The later view is reflected in the fact that sixteen BITs among twenty four signed by Bangladesh with twenty-four states have clearly applied the provisions of the agreement to both future investments and investments which predate the agreement.[30] Again, the UK Model BIT (2008) clearly specifies the agreement to be applicable to the previous investments too.[31]Thus it is essential to determine in express terms, whether or not the provisions of the Bangladesh-UK BIT apply to investments that predate the agreement between Bangladesh and UK and if so, to determine the terms, effect and limitation of such retrospective application as per the regulation of the host state.

Standard of Treatment

UK’s Model BIT provides in Article 3 provisions for relative standards including “national treatment” and “most-favored-nation treatment” (MFN) which have a more or less ideal standing in international law.[32] It also incorporates “fair and equitable treatment” added with “full protection and security” as absolute standards, though there is no set standard of the application of these terms.[33]It is to be mentioned that, seven UK BITs negotiated during 1980-1981 including Bangladesh-UK BIT (1980) didn’t include the ‘national treatment’ standard for protection of investments.[34]However, most UK BITs during 1982-1986 incorporated this standard and BITs with Nepal, India and Pakistan[35] show no deviation from the standard practice prevailing then. Such inconsistency concerning standard of treatment showcased the absence of a global consensus on this matter.[36]Some capital exporting states like China have avoided national treatment on the ground that such standard may fall short of the minimal standard of treatment provided under international law.[37]However, the practice of incorporating national treatment is relatively new in the context of investment and has gained recent popularity in the backdrop of increasing number of investor-state arbitration since mid-1990s.[38]As such, rejecting this view other capital exporting states have argued that recognition of such a standard purports to make a host state subject to international scrutiny of the treatment that they provide to foreign investors.[39] A recent wave of argument provides great importance on a state’s inherent right to discriminate in favor of its own investors, spotting the discrepancy in many issues including finance, infrastructure, technology etc. between both parties, as the developed states denying such rights have themselves adopted such policy in course of their own development.[40]Balancing both the above views, some developing countries have sought to include national treatment in BITs limiting its scope by reserving particular sectors for utilization by national private or public entities, such as the USA-Georgia BIT (1994).[41]Such clause ousts many sectors sensitive to the host state’s prerogative from the application of national treatment standard.

Among the fifteen Bangladeshi BITs signed with developed countries including UK, ten BITs include the national treatment and seven of them have been signed during 1990-2011 except Bangladesh-Germany BIT (1981), Bangladesh-USA BIT (1986) and Bangladesh-Korea BIT (1986). Thus, majority of the Bangladeshi BITs signed after 1990 including the ones with developed countries have evidently incorporated the national treatment standard for protection of investors in host states. If both the notions of native development as well as practical compatibility of national standard in comparison to international standard are taken into consideration, insertion of national treatment in a limited capacity for specific sectors in the Bangladesh-UK BIT might balance the interest of Bangladesh from both arrears of investment i.e. international and domestic.

Reparation of Profit

Repatriation of profit by investors is as crucial as resulting into the frustration of a bilateral agreement between the contracting states.[42] The UK Model Investment Promotion and Protection Agreements (IPPA) encompasses in robust terminology provisions pertaining to investor’s freedom of transferring investments and returns associated with them. However, recognizing certain financial or economic situations as exceptions, Sri Lanka-UK BIT (1980)[43] and Bangladesh-UK BIT (1980)[44] afford an exceptions to this right adding terms such as:

“…..subject to the right of each Contracting Party in exceptional financial or economic circumstances to exercise equitably and in good faith powers conferred by its laws.”

This exception of withholding such unwarranted rights in extreme exceptional situations can be justified by applying the doctrine of “clausula rebus sic stantibus”.[45] This doctrine crystallizes an implicit condition recognized in international law which favors cessation of a treaty or an agreement when the foundations on which the treaty stood at the first places, changes substantially.[46]Though, due to a liberalized shift towards exchange restrictions rest of the UK BITs in South Asia contain no such exception.

 

In absence of such exceptions, any regulatory apparatus of Bangladesh contrived to tackle unprecedented national or economic emergency may result in arbitrary claim against Bangladesh by investors before ICSID. For example, when Argentina witnessed an economic catastrophe in 2001, it devised regulations for restructuring the foreign exchange system of Argentina in order to reform its convertibility regime, nearly 50 cases worth 50 billion USD accumulated against Argentina before ICSID by investors irrespective of Argentina’s defaulted public debt of 130 billion USD.[47] Thus, situations like Far East Asian or Argentinean financial crisis well explain the need for Bangladesh to stick to the existing exception overcoming the zeal for absolute right of repatriation.

Safeguards against Nationalization & Expropriation

Due to the significant change in the nature of taking, a state’s power to nationalize overseas property in exceptional circumstances is generally accepted under international investment law[48]Article 5(1) of the Bangladesh-UK BIT (1980) states:

“Investments of nationals or companies of either Contracting Party shall not be nationalised, expropriated or subjected to measures having effect equivalent to nationalisation or expropriation (hereafter referred to as “expropriation ") in the territory of the other Contracting Party except for a public purpose related to the internal needs of that Party and against prompt, adequate and effective compensation. Such compensation shall be equivalent to the full value of the investment expropriated immediately before the expropriation became known, shall be made without delay, be effectively realizable and freely transferable. The legality of an expropriation and the amount of compensation shall be subject to review by due process of law.”[emphasis added]

 

The Bangladesh-UK BIT (1980) rightly circumscribes the notion of expropriation providing policy safeguards to the investors and their properties. All the South Asian UK BITs provide for “nationalization”, “expropriation”, “measures having equivalent effect” and prohibition on such measures except for recognizable public purposes[49] but with certain variations as to nature of need, standard of compensation, value of compensation, payment of interest etc. The UK-India BIT (1994) states in Article 5(1):

“Investments of investors of either Contracting Party shall not be nationalised, expropriated or subject to measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as "expropriation") in the-territory of the other Contracting Party except for a public purpose related to the internal requirements for regulating economic activity on a non-discriminatory basis and against fair and equitable compensation. Such compensation shall amount to the genuine value of the investment expropriated immediately before the expropriation or before the impending expropriation became public knowledge, whichever is the earlier, shall include interest at a fair and equitable rate until the date of payment, shall be made without unreasonable delay, be effectively realizable and be freely transferable”[50]

On this matter, Article 5(1) of the UK-Nepal BIT (1993) states:

“Investments of nationals or companies of either Contracting Party shall not be nationalised, expropriated or subjected to measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as "expropriation") in the territory of the other Contracting Party except for a public purpose (which term includes the purposes of national defense) related to the internal needs of that Party and against prompt, adequate and effective compensation. Such compensation shall amount to the market value of the investment expropriated immediately before the expropriation or before the impending expropriation became public knowledge, whichever is the earlier, shall be made without delay, in any event not later than six months after the date of expropriation, be effectively realizable and be freely transferable. The national or company affected shall have a right, under the law of the Contracting Party making the expropriation, to prompt review, by a judicial or other independent authority of that Party, of his or its case and of the valuation of his or its investment in accordance with the principles set out in this paragraph.”[51] [emphasis added]

Again the UK-Sri Lanka BIT (1980), which is the oldest UK BIT in South Asia provides in Article 5(1) provision relating to expropriation which states:

“Investments of nationals or companies of either Contracting Party shall not be nationalised, expropriated or subjected to measures having effect equal to nationalisation or expropriation (hereinafter referred to as “expropriation") in the territory of the other Contracting Party except for public purpose related to the needs of that Party and against prompt, adequate and effective compensation. Such compensation shall amount to the full value of the investment expropriated immediately before the expropriation or before the impending expropriation became public knowledge and shall include interest at a normal commercial rate until the date of payment. Payment of be compensation should be made without delay and the Contracting Party making compensation shall guarantee free transfer of the compensation at the official rate of exchange prevailing on the date used for the determination of value. The national or company affected shall have a right, under the law of the Contracting Party making the expropriation, to prompt determination of the amount of compensation either by law or by agreement between the parties and to prompt review, by a judicial or other independent authority of that Contracting Party, of his or its case and of the valuation of his or its investment in accordance with the articles set out in this paragraph.”[52] [emphasis added]

The latest among the five BITs, the UK-Pakistan BIT (1994) provides for expropriation in Article 5(1) as follows:

“Investments of nationals or companies of either Contracting Party shall not be nationalised, expropriated or subjected to measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as "expropriation") in the territory of the other Contracting Party except for a public purpose related to the internal needs of that Party on a non-discriminatory basis and against, prompt, adequate and effective compensation. Such compensation shall amount to the-'genuine value of the investment expropriated immediately before the expropriation or before the impending expropriation became public knowledge, whichever is the earlier, shall include interest at a normal commercial rate until the date of payment shall be made without delay, be effectively reaIizable and be freely transferable. The national or company affected shall have a right, under the law of the Contracting Party making the expropriation, to prompt review, by a judicial or other independent authority of that Party, of his or its case and of the valuation of his or its investment in accordance with the principles set out in this paragraph.”[53][emphasis added]

The adequate compensation as per the UK-Sri Lanka BIT (1980) and UK-Bangladesh BIT (1980) is the ‘full value’ of the investment. Whereas the UK-India BIT (1994) and UK-Pakistan BIT (1994) requires the ‘genuine value’ to be paid. Only the UK-Nepal BIT (1993) sets the ‘market value’ of the investment as the adequate compensation to be paid. Neither of the five BITs define the ambit of these standards reflecting a non-agreement of the parties on the set of criteria applicable to each cases. However, the difference in the wordings doesn’t vary the common standard of paying compensation in case of expropriation in light of the international practice. This has been recognized by many states that have preferred to identify the general understanding regarding these standards. For example, a side letter to the USA-Panama BIT (1982) provides that:[54]

“Both Parties understand that the estimate of full value of expropriated investment can be made using several methods of calculation depending on the circumstances thereof.”

Again, China-Cote D'Ivoire BIT at Article 5(2) states that:[55]

"the value shall be determined in accordance with generally recognized principles of valuation."

The significant deviation lies in point of time at which such value has to be determined. Except the Bangladesh-UK BIT (1980), the rest of the South Asian BITs stipulate that the value of adequate compensation has to be determined at the earliest date in point of time between the day of expropriation and the day such expropriation becomes publicly known. But the Bangladesh-UK BIT (1980) solely prefers the date when the expropriation becomes public knowledge.

It has been argued that, the host state may not always benefit from the result that flows down from the public knowledge of impending expropriation or nationalization on the value of an investment.[56] Again, establishing the point of time of  the action pertaining to expropriation in an indirect taking will be contentious as the doubt as to the precise date is most likely to be resolved in favor of the investor as the host state is more likely to possess the relevant documents.[57] Thus, to avoid such situations including circumstances when the action pertaining to expropriation may be known before the actual expropriation, the time test as applied in the rest of the South Asian BITs may be followed in Bangladesh-UK BIT.

With regards to the purpose of expropriation the Sri Lankan, Bangladeshi and Pakistani BITs provide for generalized public purpose relating to the internal matters of the state. Whereas, the Indian BIT qualifies the public purpose to be precisely related requirements for internal economic activity and the Nepalese BIT qualifies the public purpose as situations of national defense. Thus, the inconsistency flowing from the oldest to the latest UK BITs in South Asia suggests a more country specific approach of UK while negotiating the BITs. Though in one hand, a generalized idea of public purpose allows Bangladesh to interpret the situations of expropriation accordingly but on the other hand such vagueness allows more interpreting power to the arbitrators which popularly go against the host states.[58] In this regard, narrowing down the sectors of public purpose like that of India or Nepal may work as both safeguard in arbitration as well as allow certain level of flexibility of circumscribing situations pertaining to expropriation as per its national interest.

All South Asian BITs except Bangladesh require the host state to furnish full value of the investment as compensation counting the interest, added with a judicial review on demand by the investing party. As observed above, the Bangladesh-UK BIT does not require the host state to pay interest and necessitates only to assess whether such expropriation was done following the due course of law or not. Inclusion of interest to be availed at a certain rate, until a certain period is not a consistent practice while negotiating BITs.[59] Despite the absence of such provision on interest in the Bangladesh-UK BIT as per Article 5 of the BIT, ‘the full value of the investment is recoverable[60] which enables the investors to retain status quo after expropriation and this entails sufficient safeguard under international law.

“Due process of law” used in the UK-Bangladesh BIT provides for an unambiguous forum for reviewing the validity of the expropriation since an agreement is expected to remove any confusion regarding such due process of law. The notion of a an autonomous authority i.e. a judicial authority as used in other South Asian BITs of UK formulates a more specific forum which ensures the investors of the actual process of reviewability and gives them a chance to check and balance the protection of their interest.[61] Thus a review of the forum for assessing the legality of the expropriation might offer British investors more investment security since a lack in such measure might result in frustrating the entire protection mechanism devised in the BIT.

Moreover, the exemplary time frame of six months set in the UK-Nepal BIT for paying the compensation caters in favor of a host state. As the economic, security or public concern causing the expropriation is expected to be dealt with within a given time, paying the compensation overnight might be a challenge on part the expropriating state. Thus the time frame indeed fosters the economic interest of the expropriating state by allowing them a feasible time to recover followed by payment of compensation.

Standard of Compensation

Except in the UK-India BIT (1994), rest of the South Asian BITs has stick to the standard of “prompt, adequate and effective” compensation in case of nationalization.[62] Recently, developing countries have been keener towards articulating the standard of “appropriate compensation” due to the flexibility it offers by taking into account factors including profits made and duration to make such profits by investors.[63] But in case of the UK-Bangladesh BIT, the period in which the agreement was drafted should be taken into consideration. On the verge of unavailability of capital investment states are keen to attract investments and there is a tendency to resort to the Hull formula that reasons in favor of “prompt, adequate and effective” mode of reparation.[64]Thus, taking the examples of China and Vietnam who have also resorted to Hull formula to oust the impression of a high-risk country, coupled with the growing idea of a free market economy, Bangladesh had rightly negotiated on the standard of compensation establishing the inclination towards respecting the property rights of contracting nationals.[65] On the other hand, considering to the increasing flow of FDI in Bangladesh and the need to balance the property rights of her own nationals as per her economic capacity and aptitude, Bangladesh might review the standard of compensation to be provided taking into reflection that the presence of the “fair and equitable standard” of compensation in lieu of  Hull formula has not affected investment flow of British investors in India rather has given India the opportunity to determine compensation equitably balancing the interest of both the states.[66]

Dispute Settlement Mechanism

Historically, while constituting the dispute settlement mechanism in BITs the states have negotiated in favor of a twofold scheme for settling disputes arising out of investment agreements.[67] First one caters for state-state dispute and the second one for investor-state dispute (ISD). Regarding the former, the UK-Bangladesh BIT provides for ‘negotiation to solve disputes’ vis-à-vis clarification or utilization of the agreement, on failing of which ad hoc arbitration is to be resorted.[68] Regarding later one, the Bangladesh-UK BIT (1980) offers the opportunity to construct an arbitration mechanism pertaining to the International Center for Settlement of Investment Disputes (ICSID).[69] Article 8 of the model UK IPPA contemplates the consent required to assume jurisdiction on the occasion of an investor-state dispute for obtaining the necessary award, exhausting the requirement to take resort to negotiation.[70] Such provision is clearly reflected in the UK BITs with Sri Lanka, Bangladesh and Nepal.[71] Whereas UK BITs with India and Pakistan contain the alternative and less desirable option for UK which refers to UNCITRAL particularly in case of India because of not being a party to the ICSID convention. [72]

Over the time, taking resort to international arbitration forums for Investor-State-Dispute-Resolution (ISDS) has become a compulsory feature of international investment agreements.[73] World Bank’s establishment of ICSID in 1965 fostered the settlement of disputes in an international set up later boosted by adaptation of UNCITRAL rules in 1976.[74] Though in spite of their rampant usage many commentators have regarded such arbitration mechanisms inherently ‘pro-investor- biased since firstly, the consent of the investor is a pre requirement to the arbitration process which automatically puts the host state in a back foot and secondly, the investors are not required to exhaust local remedies.[75] Though another wave of commentators have argued that existence of such neutral mechanism in BITs strengthens the legal framework for the protection of investors as the ‘depoliticisation’ of investment dispute bars it from affecting the bilateral relationship between the contracting states.[76]Recently, countries like Venezuela and Ecuador have resigned as parties to the ICSID convention to protect their economic sovereignty and strengthen their regulatory freedom.[77] Whereas India’s model BIT terminating existing BITs with 57 countries reflecting India’s will to withdraw from ISDS framework flows from India’s reaction towards the unfairness and biasness of arbitration mechanisms in favor of  investors.[78]

Thus, presence of the ICSID mechanism backs up the British investors by ensuring Bangladesh’s commitment to join any proceeding initiated against Bangladesh which itself acts as a significant part of the protection scheme given to the investor by Bangladesh though it is in the best interest of Bangladesh to review the existing Bangladesh-UK BIT (1980) clearly and particularly defining the ambit of investor’s protection mechanism pertaining to ISDS so that the provisions of the agreement don’t become prey to the interventionist interpretation of the arbitral mechanism.[79]

Reflection of the new era of BITs

It is interesting to note as to how the “preamble” or the “prefatory statement” to the agreement has been grasping an importance in the interpretation of BITs which is consistent with Article 31 of the Vienna Convention on the Law of Treaties (VCLT) 1969 which encompasses how preamble is relevant to indicate the perspective or the interpretation of an agreement.[80] Intense competition among or between developing countries to attract FDIs have resulted in BITs with higher concession on regulatory autonomy, environmental, human rights concerns etc.[81] Nevertheless, some recent BITs have considered such protections as policy justification, one of which is seen in the preamble to the model USA BIT which demarcates protection of health, safety and environment as its objective.[82] Though many investors have contested such protection to be equivalent to indirect expropriation[83] but many states have recently counteracted by devising provisions which establishes any measure taken to protect and conserve the environment as exceptional measures.[84] More sophisticated examples can be found in the South African Developmental Community (SADC) Model BIT (2012)[85] or the Investment for Sustainable Development (IISD) Model Agreement (2005)[86]which require environmental and social impact assessment and adoption of principle of precaution while concluding a BIT.[87] Thus, many states are addressing these concerns and have quartered them within the agreement assuming the significance of human rights and environmental treaties in coming future. Since these norms are of a recent development in International Law and many of them have asserted the status of jus cogens principle, Bangladesh needs to revisit the oldest BIT entered, in order to structuralize the competing norms of international law in order to devise a scheme which best resonates the interest of Bangladesh.

Revisiting and renegotiating Bangladesh-UK BIT

The history of bilateral investment treaty negotiation suggests that a handsome number of states have entered their earliest BITs with limited enquiry of their legal implication and very little break down of the economic costs and benefits attached to the BITs.[88] Again, in many such cases legal or economic awareness might not have played as significant role as the then regional or international politics back in their minds.[89] As Poulsen suggests, many developing countries may have signed BITs in order to avoid economic or diplomatic repercussions from states of financial institutions on account of unequal negotiating power.[90] Nevertheless, with the increasing importance of treaty language in investment arbitration and the realization of flowing from the ISDS complexities of countries across the world, states have felt the need to adjust their earlier investment treaties with in depth consideration of legal and economic paradigms.[91]

As suggested by UNCTAD, there are at least ten options available to the contracting states including joint interpretation, amendments, replacing older treaty etc. in order to bring the existing investment treaties in conformity with the changed policy considerations of the states over the years.[92] Bangladesh signed its first Joint Interpretative Notes with India for the Bangladesh–India BIT (2009) which clarified a number of clauses in the BIT pertaining to the definition, taxation measures, national treatment, expropriation, ISDS etc.[93]Engaging in joint interpretation with UK for clarifying the provisions of Bangladesh-UK BIT (1980) is one of the easiest ways for Bangladesh to revise the BIT as per the changed economic and policy circumstances. This method is practically the most convenient to apply as amendment or renegotiation may require comparatively more time and cost as interpretative statements do not require ratification and a statement as to the binding nature of the joint interpretation in the agreement eliminates further doubt as to its legal effect.[94]

As joint interpretation only further explain already existing provisions, sometimes it is not possible to bring in fresh concepts and requirements in a BIT irrespective of the existing provisions through joint interpretation. Thus many BITs contain provisions for amendment of the agreement any moment during the continuance of the treaty on the basis of bilateral consensus. Among the BITs negotiated by Bangladesh, only a few recent treaties provide for such an amendment clause, for example, Bangladesh-Turkey BIT (2012)[95], Bangladesh-UAE BIT (2011)[96], Bangladesh-Denmark BIT (2009)[97], and Bangladesh-Singapore BIT (2004)[98], Bangladesh-Uzbekistan BIT (2000)[99] and Bangladesh-Indonesia BIT (1998)[100]. Neither of the South Asian BITs signed by UK contains any such provision as to amendment of the agreement. Whereas among the latest UK BITs, Article 15(2) of the UK-Ethiopia BIT (2009) states:

“This Agreement may be amended by the mutual consent of the Contracting Parties provided that one of the Contracting Parties present written proposal for amendment to the other Contracting Party. Amendments shall be made through the exchange of notes or signing of an amendment agreement.”[101]

In spite of the absence of such express provisions, amending the Bangladesh-UK BIT (1980) is rather possible because the exchange of notes with regard to the Paraguay-United Kingdom BIT (1981) which doesn’t contain amendment clause, provided for some adjustments in ISDS mechanism pertaining to amendment in 1997.[102] However these amendments are still in the process of ratification and typically the amendments are narrow in nature as they do not affect the overall treaty design and such states have resorted to this method rather frugally.[103]

Replacement of the existing treaty by a new, inclusive and modified one perhaps overcomes the above limitations. Such a replacement enables a state to comprehensively revise the existing treaty instead of picking some individual clauses and amending them.[104]A fresh treaty offers the parties an opportunity to deal with earlier challenges, rigorously incorporating the new concepts of bilateral investment that caters their need and popularity of this method is evident from the fact that 130 BITs have been replaced till date.[105] In this discussion the example of Netherlands is noteworthy. In 2018 Netherland has replaced 79 older generation treaties and implemented reforms related to the definition of investment, precise standards of treatment, exceptions to them, refinement of ISDS clause etc. through a model BIT.[106] In 2008, Ecuador formulated a model BIT with prominent features foe negotiation of future BITs including prior treaty partners.[107]Similarly, on the face of struggling with the controversial ISDS mechanisms in international arbitration, India terminated 57 of its BITs including the one with UK and formulated the model BIT in 2015 for negotiating any future agreement.[108] Thus, Bangladesh and UK may revise the existing treaty by replacing it with a fresh one devising the transition as per Article 13 of the Bangladesh-UK BIT (1980) as the most feasible way to improvise the existing provisions relating to entry, standard of treatment, expropriation, ISDS mechanism etc. along with incorporating the current trends of investment treaties allowing Bangladesh a greater policy control and regulatory sovereignty over concerns related to environment, human right, labor rights and development.

Conclusion

Though the Bangladesh-UK BIT is a bilateral agreement for reciprocal investment, the flow of investment in reality is always one way, flowing from the UK to Bangladesh.[109] UK is the third biggest export destination for Bangladesh preceded by the USA and Germany, exporting 1981.66 million USD till December, 2018 covering an estimated 9% export share in UK market.[110] While UK ranked third among the investors preceded by Netherlands and China, Bangladesh has experienced highest ever investment from UK in 2017.[111] By the end of September, 2019 total FDI stock of UK in Bangladesh stood at 2271.98 million USD preceded just by USA.[112]  Whereas during June, 2019 to September, 2019 UK had the highest net FDI info of 90.01 million USD in Bangladesh topping in sectors such as: telecommunication, food, banking etc. [113]As this asymmetry is an inherent nature of a north-south BITs,[114] developing states have to make the best out of such BITs in terms of its economic growth and development.

Recently, Bangladesh has turned itself into a ‘hotspot for investment’[115] which is evident from the receiving of highest ever FDI of 3.61 billion USD in 2018.[116] Given that the strategy of British BITs back in early 1980s was to protect the already existing investments in developing countries from expropriation, the link between FDI and BITs has been somehow indirect and when factors like market size, labor cost, infrastructure, political stability etc. are taken into consideration, BITs have been considered as secondary to them for promoting FDI flows.[117] However, a recent wave has escalated in favor of terminating older BITs by many developing states including India and Ecuador in order to renegotiate its terms in the latest investment regime by bargaining as much as possible in the host country’s favor. Such termination has resulted from the growing concern over protection of national interest and regulatory sovereignty in ISDS mechanisms. Unfortunately, the regulation governing the dispute mechanism between UK and Bangladesh is almost four decades old and Bangladesh has already experienced such potential ISDS risks through Bangladesh’s arbitration with Saipem,[118] Chevron[119] and Niko.[120]

Bangladesh provides a state of comfort to foreign investors and MNCs expanding the scope and amount of FDIs in return. With a FDI stock of 70 million USD in 1996 in Bangladesh[121]presently UK stands out as one of the key investors in different economic sectors of Bangladesh. Currently, over 100 British companies are operating in Bangladesh of which some companies are investing since 197[122]and UK is one of the key export destination for Bangladesh.[123]British companies have a significant position in Bangladesh economy and as such have huge potential for both positive and negative impact on people.[124] Thus, with the viable possibility of further increase in the number of British investments in the coming future through different economic sectors such as: readymade garments (RMG), energy etc. as Bangladesh becomes a lucrative destination for British investors, [125]it is high time to devise a pro-development bilateral investment agreement that incorporates the current best practice in the field of international investment.

Bangladesh’s journey from being once brusquely termed as the ‘bottom less basket’ to a ‘hotspot’ for investment is largely attributable to the current Awami League Government’s focus on regulatory reforms, establishing Special economic Zones (SEZs) coupled with the political stability and economic diplomacy which is in play since 2009. But for a viable investment scheme with UK, favoring Bangladesh’s development goal and regulatory arrangement, Bangladesh needs an all-embracing home task to assess, revise and reconsider the existing BITs let alone the firstborn BIT with UK in order to strike a balance between the protection of national interest, ISDS mechanism with the protection of future potential foreign investors.

 

[1] Loretta Malintoppi & Charis Tan, Investment Protection in Southeast Asia: A Country-by-Country Guide on Arbitration Laws and Bilateral Investment Treaties (1stedn, Brill 2016).

[2] The World Bank Group Office of the Chief Economist South Asia Region, Trends and Determinants of Foreign Direct Investment in South Asia (Report No: ACS4862, 2013).

[3] Abdin MJ, ‘Foreign Direct Investment (FDI) in Bangladesh: Trends, Challenges and Recommendations’ (2015) 4(8) International Journal of Economics & Management Sciences https://www.hilarispublisher.com/open-access/foreign-direct-investment-fdi-in-bangladesh-trends-challenges--recommendations-2162-6359-1000276.pdf.

[4] United Nations Conference on Trade And Development (UNCTAD), International Investment Agreements Navigator https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/277/download.

[5] International Development Center of Japan, British Investment Treaties in South Asia: Current Status and Future Trends (January 2000).

[6] International Development Center of Japan (n 5).              

[7] Art. 1 (n 4).

[8] Eric neumayer, 'Self-Interest, Foreign Need, and Good Governance: Are Bilateral Investment Treaty Programs Similar to Aid Allocation' [2006] 2 Foreign Policy Analysis 245-267.

[9] Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments 1959.

[10] Biswajit Dhar, Reji Joseph, T C James, India's Bilateral Investment Agreements: Time to Review [2012] 47(52) Economic and Political Weekly 113-122 https://www.jstor.org/stable/41720557.

[11] Art. 1(b):"investment" means every kind of asset established or acquired, including changes in the form of such investment, in accordance with the national laws of the Contracting Party in whose territory the investment is made and in particular, though not exclusively, includes; (i) movable and immovable property as well as other rights such as mortgages, liens or pledges; (ii) shares in and stock and debentures of a company and any other similar forms of interest in a company; (ill) rightful claims to money or to any performance under contract having a financial value; (iv) intellectual property rights, goodwill, technical processes and know-how in accordance with the relevant laws of the respective Contracting Party; (v) business concessions conferred by law or under contract, including concessions to search for and extract oil and other minerals;

[12] United Nations Conference on Trade And Development (UNCTAD), International Investment Agreements Navigator https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/1613/download.

[13] United Nations Conference on Trade And Development (UNCTAD), International Investment Agreements Navigator https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/2138/download.

[14] Fraport AG Frankfurt Airport Services Worldwide v Republic of the Philippines (2007) ICSID Case No. ARB/11/12.

[15] M. Sornarajah, The International Law on Foreign Investment (3rd edn, Cambridge University Press 2010) 195.

[16] Vandevelde, A Brief History of International Investment Agreements (2005) 12 UC Davis Journal of International Law And Policy, 157.

[17] United Nations Conference on Trade And Development, Investment Policy Review of Bangladesh, (Country Navigator, 2013) https://investmentpolicy.unctad.org/country-navigator/18/bangladesh.

[18] Art. 2(3): The Agreement shall apply only to investments that have been specifically approved in writing by the competent authority, if so required by the laws and regulations of that Contracting Party.

[19] Philip Ebow Bondzi-Simpson and Felix Awuah, 'A Review of the China-Ghana Bilateral Investment Treaty, 1989' (2017) 12 Frontiers L China 372.

[20] Art. 2(1): Each Contracting Party shall encourage and create favourable Conditions for nationals or companies of the other Contracting Party to invest capital in its territory, and, subject to its right to exercise powers conferred by its laws existing when this Agreement enters into force, shall admit such capital.

[21] Art. 2(1) (n 4).

[22] International Development Center of Japan (n 5)

[23] Jeswald W. salacuse,'BIT by BIT: The Growth of Bilateral Investment Treaties and Their Impact on Foreign Investment in Developing Countries [1990] 24(3) The International Lawyer 655 <https://www.jstor.org/stable/40706447?seq=1> accessed 12 April 2020.

[24] J. Steven Jarreau, ‘Anatomy of a Bit: The United States: Honduras Bilateral Investment Treaty’ (2004) 35(3) Miami Inter-American Law Review 429.

[25] Art. 10: This Agreement shall apply to all investments, whether made before or after its entry into force, but shall not apply to any dispute concerning an investment which arose, or any claim concerning an investment which was settled, before its entry into force.

[26] International Institute for Sustainable Development (IISD), South-South Bilateral Investment Treaties: The same old story? (IV Annual Forum for Developing Country Investment Negotiators Background Papers, 2010)

[27] Art. 2: This Agreement shall apply to all investments made by investors of either Contracting Party in the territory of the other Contracting Party, whether made before or after the coming into force of this Agreement.

[28] Art. 2(1): This Treaty shall apply to measures adopted or maintained by a Party relating to investments of investors of another Party in its territory, in existence as of the date of entry into force of this Treaty or established, acquired, or expanded thereafter https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/3560/download.

[29] Agreement between the Federal Republic of Germany and the Republic of the Philippines for the Promotion and Reciprocal Protection of Investments 1997, a 7.S

[30] Bangladesh-Turkey BIT 2012, Art. 12; Bangladesh-UAE BIT 2011, Art. 2; Bangladesh-Denmark BIT 2009, Art. 12; Bangladesh-India BIT 2009, Art. 2; Bangladesh-Switzerland BIT 2000, Art. 2 https://investmentpolicy.unctad.org/international-investment-agreements/countries/16/bangladesh?type=bits.

[31] Art. 12: This Agreement shall apply to all investments, whether made before or after its entry into force, but shall not apply to any dispute concerning an investment which arose, or any claim concerning an investment which was settled, before its entry into force. https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/2847/download.

[32] Art. 3:Neither Contracting Party shall in its territory subject investments or returns of nationals or companies of the other Contracting Party to treatment less favourable than that which it accords to investments or returns of its own nationals or companies or to investments or returns of nationals or companies of any third State (n 31)

[33] OECD, Fair and Equitable Treatment Standard in International Investment Law, (OECD Working Papers on International Investment 2004/03) http://dx.doi.org/10.1787/675702255435

[34] United Nations Conference on Trade And Development, International Investment Agreements Navigator (UNCTAD Division on Investment & Enterprise) <https://investmentpolicy.unctad.org/international-investment-agreements/countries/16/bangladesh> accessed 12 April 2020.

[35] Nepal-UK BIT 1993, Art. 3; India-UK BIT 1994, Art. 4; Pakistan-UK BIT 1994, Art. 3 https://investmentpolicy.unctad.org/international-investment-agreements/countries/221/united-kingdom.

[36] J. Steven Jarreau (n 24)

[37] Fraport AG Frankfurt Airport Services Worldwide (n 14)

[38] Andrea K Bjorklund, ‘The National Treatment Obligation’ in August Reinisch, Standards of Investment Protection (OUP 2008).

[39]Marvin Roy Feldman Karpa v. United Mexican States (2002) ICSID Case No. ARB(AF)/99/1.

[40] Ha-Joon Chang, 'Kicking Away the Ladder:An Unofficial History of Capitalism, Especially in Britain and the United States [2002] 45(5) Challenge 62-97 <https://www.tandfonline.com/doi/abs/10.1080/05775132.2002.11034173?journalCode=mcha20> accessed 12 April 2020.

[41] Art. 2(2): A Party may adopt or maintain exceptions to the obligations of paragraph 1 in the-sectors or with respect to the matters specified in the Annex to this Treaty. In adopting such an exception, a Party mar not require the divestment, in whole or in part, of covered investments existing at the time the exception becomes effective.

[42] Piero Bernardini, Investment Protection under Bilateral Investment Treaties and Investment Contracts [2001] 2(2) Journal of the World Investment and Trade <https://brill.com/view/journals/jwit/2/2/article-pvii_.xml> accessed 12 April 2020

[43] Sri Lanka-UK BIT 1980, Art. 6 https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/2293/download

[44] Art. 6 (n 4).

[45] J. W. Garner, ‘The Doctrine of Rebus Sic Stantibus and the Termination of Treaties’ (1927) 21(3) American Journal of International Law 509-516.

[46] J. W. Garne, (n 45).

[47] Federico Lavopa, ‘Crisis, Emergency Measures and the Failure of the ISDS System: The Case of Argentina’ (South Center, July 2015) https://www.southcentre.int/wp-content/uploads/2015/07/IPB2_Crisis-Emergency-Measures-and-the-Failure-of-the-ISDS-System-The-Case-of-Argentina.pdf.

[48] M. Sornarajah (n 15)

[49] International Development Center of Japan (n 5)

[50] Art. 5(1) (n 12).

[51] United Nations Conference on Trade And Development (UNCTAD), International Investment Agreements Navigator https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/2064/download.

[52] United Nations Conference on Trade And Development (UNCTAD), International Investment Agreements Navigator https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/2293/download.

[53] Art. 5(1) (n 13).

[54] J. Steven Jarreau (n 24).

[55] Philip Ebow Bondzi-Simpson and Felix Awuah (n 19).

[56] Alejandro A. Escobar, ‘Introductory Note on Bilateral Investment Treaties Recently Concluded by Latin American States’ (1996) 11 ICSID Review- Foreign Investment Law Journal.

[57] J. Steven Jarreau (n 23).

[58] Biswajit Dhar, Reji Joseph, T C James (n 10).

[59] Suzy H. Nikiema, Compensation for Expropriation (International Institute for Sustainable Development, 2013).

[60] United Nations Conference on Trade and Development, UNCTAD Series on Issues in International Investment Agreements 2 (Geneva, 2012).

[61] Eileen Denza and Shelagh Brooks, Investment Protection Treaties: United Kingdom Experience (1987) 36(4) International and Comparative Law Quarterly 908-923.

[62] Art. 5(1) (n 12).

[63] Fraport AG Frankfurt Airport Services Worldwide (n 14)

[64] D. Robinson, Expropriation in the Restatement (1984) 78 American Journal of International Law 176.

[65] Berger, Hesitant Embrace: China’s Recent Approach to International Investment Rule [2015] 16(5-6) The Journal of World Investment and Trade <https://www.die-gdi.de/en/otherspublications/article/hesitant-embrace-chinas-recent-approach-to-international-investment-rule-making/> accessed 13 April 2020.

[66] Art. 5(1) (n 12).

[67] Pohl J., K. Mashigo and A. Nohen, Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey (2012) OECD 2 Working Papers on International Investment, OECD Publishing. http://dx.doi.org/10.1787/5k8xb71nf628-en.

[68] PieroBernardini (n 42), a 9.

[69] European Parliament, Investor-States Dispute Settlement (ISDS) Provisions in the EUs International Investment Agreements (1Directorate General for External Policies 2014).

[70]Nathalie Bernasconi-Osterwalder, State-State Dispute Settlement Clause in Investment Treaties (IISD Best Practice Series, October, 2014) <https://www.iisd.org/library/best-practices-series-state-state-dispute-settlement-clause-investment-treaties> accessed 12 April 2020.

[71] Sri Lanka-UK BIT 1980, Art. 8; Bangladesh-UK BIT 1980, Art. 8; Nepal-UK BIT 1993, Art. 8 https://investmentpolicy.unctad.org/international-investment-agreements/countries/221/united-kingdom.

[72] International Development Center of Japan (n 5)

[73] William S. Dodge, ‘Investor-State Dispute Settlement Between Developed Countries: Reflections on the Australia-United States Free Trade Agreement’ (2006) 39(1) Vanderbilt Journal of Transnational Law.     

[74] Biswajit Dhar, Reji Joseph, T C James (n 10) 118

[75] Kyla Tienhaara, ‘Investor State Dispute Settlement in the Trans-Pacific Partnership Agreement’ Submission to the Department of Foreign Affairs and Trade.

[76] Ibrahim F. I. Shihata, ‘Towards a Depoliticization of Investment Disputes: The Roles of ICSID and MIGA [1986] 1(1) ICSID Review - Foreign Investment Law Journal <https://academi1c.oup.com/icsidreview/article/1/1/1/756171> accessed 12 April 2020

[77] Rumana Islam, The Fair and Equitable (FET) Standard in International Investment Arbitration: Developing Countries in Context (Springer 2018) 6.

[78] Prabhash Ranjan, ‘Indian Investment Treaty Programme in the Light of Global Experiences’ 45(7) Economic & Political Weekly 68-72.

[79] V Inbavijayan and KirthiJayakumar, Arbitration and Investments-Initial Focus [2013] 2(1) Indian Journal of Arbitration Law <http://www.ijal.in/sites/default/files/IJAL%20Volume%202_Issue%201_V.%20Inbavijayan%20%26%20Kirthi%20Jayakumar.pdf> accessed 12 April 2020.

[80] Vienna Convention on the Law of Treaties, 1155 United Nations Treaty Series, 331.

[81] Luke Eric Peterson, Human Rights and Bilateral Investment Treaties: Mapping the role of human rights law within investor-state arbitration (Rights & Democracy, 2009).

[82] Jeswald W. Salacuse (n 23), preamble.

[83] TecnicasMedioambientalesTecmed, S.A. v United Mexican States (2003) ICSID Case No. ARB (AF)/00/2.

[84] North American Free Trade Agreement (NAFTA) 1989, a 114(1).

[85] The South African Development Community (SADC) Model Bilateral Investment Treaty Template and Commentary (2012) https://www.iisd.org/itn/wp-content/uploads/2012/10/sadc-model-bit-template-final.pdf

[86] IISD Model International Agreement on Investment for Sustainable Development (2005) https://www.iisd.org/pdf/2005/investment_model_int_agreement.pdf.

[87] South African Developmental Community (SADC) Model BIT, a 13(1). Investment for Sustainable Development (IISD) Model Agreement, a 12(d).

[88] Jose Alvarez, ‘The Once and Future Foreign Investment Regime,’ in Mahnoush H. Arsanjani, Jacob Katz Cogan, Robert D. Sloane and Siegfried Wiessner (eds), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Martinus Nijhoff, 2010) 620-622.

[89] Jose Alvarez (n 88).

[90] Poulsen L., 2011. Sacrificing Sovereignty By Chance: Investment Treaties, Developing Countries, And Bounded Rationality. DPhil. London School of Economics and Political Science (LSE).

[91] Sergey Ripinsky, Venezuela’s Withdrawal From ICSID: What it Does and Does Not Achieve (Investment Treaty News, 13 April 2012).

[92] UNCTAD, Investment, Enterprise and Development Commission Multi-year Expert Meeting on Investment, Innovation and Entrepreneurship for Productive Capacity-building and Sustainable Development (2017) https://unctad.org/meetings/en/SessionalDocuments/ciimem4d14_en.pdf.

[93] Matthew Weiniger, ‘India and Bangladesh to issue joint interpretative note on bilateral investment treaty’ (Linklaters, 5 September 2017) https://www.linklaters.com/en/insights/blogs/arbitrationlinks/2017/september/india-and-bangladesh-to-issue-joint-interpretative-note-on-bilateral-investment-treaty

[94] UNCTAD, Global Value Chains – Investment and Trade for Development (2013) World Investment Report.

[95] Art 13(4): This Agreement may be amended by mutual written consent of the Contracting Parties at any time. The amendments shall enter into force in accordance with the same legal procedure prescribed under the first paragraph of the present Article.

[96] Art. 15: At the time of entry into force of this Agreement or at any time thereafter the provisions of this Agreement may be amended in such manner as may be agreed between the Contracting Parties. Such amendments shall enter into force when the Contracting Parties have notified each other that the constitutional requirements for the entry into force have been fulfilled.

[97] Art 13: At the time of entry into force of this Agreement or at any time thereafter tire provisions of this Agreement may be amended in such manner as may be agreed between the Contracting Parties. Such amendments shall enter into force when the Contracting Parties have notified each other that the constitutional requirements for the entry into force have been fulfilled.

[98] Art 10(4): This Agreement may be amended in writing by mutual consent of the Contracting Parties. On agreement having been reached, each Contracting Party shall notify the other in writing that it has completed all internal state requirements for the entry into force of such amendment. The amendment shall enter into force on the date of the latter of the two notifications.

[99] Art 13: Changes and additions may be inserted in the present Agreement by written agreement of the Contracting Parties.

[100] Art 12(2): This Agreement may be amended at any time, if deemed necessary, by mutual consent.

[101] United Nations Conference on Trade And Development (UNCTAD), International Investment Agreements Navigator https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/1180/download.

[102] UNCTAD (n 92).

[103] UNCTAD (n 94).

[104] UNCTAD, Bilateral Investment Treaties 1995-2006: Trends In Investment Rule Making (2007) United Nation.

[105] Gordon and Pohl, Investment Treaties over Time - Treaty Practice and Interpretation in a Changing World (2015) OECD Working Papers on International Investment http://dx.doi.org/10.1787/5js7rhd8sq7h-en.

[106]Albert Marsman, ‘New model treaty to replace 79 existing Dutch bilateral investment treaties’ (De Brauw, 17 May 2018) https://www.debrauw.com/legalarticles/new-model-treaty-to-replace-79-existing-dutch-bilateral-investment-treaties/.

[107] Javier Jaramillo, ‘New Model BIT proposed by Ecuador: Is the Cure Worse than the Disease?’ (Kluwer Arbitration Blog, 20 July 2018) http://arbitrationblog.kluwerarbitration.com/2018/07/20/new-model-bit-proposed-ecuador-cure-worse-disease/.

[108] Kavaljit Singh and Burghard Ilge, ‘India overhauls its investment treaty regime’ Financial Times (15 July, 2016) https://www.ft.com/content/53bd355c-8203-34af-9c27-7bf990a447dc.

[109] Fraport AG Frankfurt Airport Services Worldwide (n 14).

[110] Md. Sajib Hossain and Rashedul Kabir, ‘Trade between Bangladesh and the UK: Post—Brexit’ The Financial Express (16 February, 2018) https://thefinancialexpress.com.bd/views/trade-between-bangladesh-and-the-uk-postbrexit-1518791664.

[111] FE Online Report, ‘Bangladesh got highest FDI from UK in 2017’ The Financial Express (1 May, 2018) https://www.thefinancialexpress.com.bd/economy/bangladesh/bangladesh-got-highest-fdi-from-uk-in-2017-1525160781.

[112] Bangladesh Bank, Foreign Direct Investment (FDI) in Bangladesh Survey Report (2019) https://www.bb.org.bd/pub/halfyearly/fdisurvey/fdisurveyjanjun2019.pdf.

[113] Bangladesh Bank (n 112).

[114] M. Sornarajah (n 15)

[115] Ibrahim Hossain Ovi, ‘Bangladesh Now Hotspot for Investment’ Dhaka Tribune (Dhaka, 17 August 2018) https://www.dhakatribune.com/bangladesh/development/2018/08/17/bangladesh-now-hotspot-for-investment.

[116] Ibrahim Hossain Ovi, ‘Bangladesh sees highest ever foreign investment’ Dhaka Tribune (Dhaka, 9 May 2019) https://www.dhakatribune.com/business/2019/05/09/fdi-rises-by-67-in-2018.

[117]International Development Center of Japan (n 5) 15.

[118] Saipem S.p.A. v The People's Republic of Bangladesh (2009) ICSID Case No. ARB/05/07

Award: On the basis of the foregoing reasons, the Tribunal renders the following award: 1. The Respondent shall pay to the Claimant the sums of USD 5,883,770.80, and USD 265,000.00 and € 110,995.92 plus interest at a rate of 3.375% per annum from 7 June 1993; 2. The recommendation issued by the Tribunal on 21 March 2007 in connection with the Warranty Bond No. 86/USD/12/92 shall cease to be in effect as of the notification of this Award. 3. The costs of the proceedings, including the fees and expenses of the Tribunal and the fees of ICSID shall be borne by the parties in equal shares; 4. Each party shall bear the expenses it incurred in connection with the arbitration; 5. All other requests for relief are dismissed https://www.italaw.com/sites/default/files/case-documents/ita0734.pdf.

[119] Chevron Bangladesh Block Twelve, Ltd. and Chevron Bangladesh Blocks Thirteen and Fourteen, Ltd. v. People's Republic of Bangladesh (2010) ICSID Case No. ARB/06/10https://www.italaw.com/cases/3436.

[120] Niko Resources (Bangladesh) Ltd. v. Bangladesh Petroleum Exploration & Production Company Limited ("Bapex") and Bangladesh Oil Gas and Mineral Corporation ("Petrobangla") (2015) ICSID Case No. ARB/10/18

Decision: (i) Petrobangla shall pay into an escrow account USD 25’312’747 and BDT 139’988’337, plus interest (a) in the amounts of USD 5’932’833 and BDT 49’849’961 and (b) as from 12 September 2014 at the rate of six month LIBOR +2% for the U.S. Dollar amounts and at 5% for the amounts in BDT, compounded annually; (ii) The escrow account shall be opened by the Claimant at a reputable, internationally operating bank according to standard conditions in international banking practice and providing that funds in the escrow account shall be released only (a) as instructed by the present Arbitral Tribunals or (b) by joint instructions of Niko and Petrobangla; (iii) Petrobangla shall ensure that the U.S. Dollar amounts paid into the Escrow Account are freely available to Niko without any restrictions if and when payment to Niko is ordered by the present Arbitral Tribunals; (iv) Until the amounts due as per above (i) have been fully paid to Niko at its free disposition or otherwise released from the Escrow Account, Petrobangla shall continue to pay interest on these amounts at the rate of six month LIBOR +2% for the U.S. Dollar amounts and at 5% for the amounts in BDT, compounded annually. At the end of each year, the Bank shall inform Petrobangla about any interest earned on the Escrow Account during the course of the year. Petrobangla may deduct the interest so earned from its interest payments for the corresponding period. If the interest earned on the amounts in the Escrow Account during a year exceeds the interest due by Petrobangla, the exceeding amount shall remain in the account without any credit to Petrobangla; (v) If any difficulties occur which prevent the operation of the Escrow Account as intended by the present decision, any Party may address the Tribunals for a ruling as required https://www.italaw.com/sites/default/files/case-documents/italaw4402.pdf.

[121] International Development Center of Japan (n 3) 8

[122] Economy, ‘BD seeks more British investment to boost growth’ Financial Express (Dhaka, 1 August 2019) https://thefinancialexpress.com.bd/economy/bangladesh/bd-seeks-more-british-investment-to-boost-growth-1564639984.

[123] Tribune Desk, ‘British investors keen to invest more in Bangladesh’ Dhaka Tribune (Dhaka, 22 July 2018) https://www.dhakatribune.com/business/commerce/2018/07/22/british-investors-keen-to-invest-more-in-bangladesh

[124] International Development Committee, ‘DFID's Programme in Bangladesh’ (2010) 2 Third Report of Session 2009-10.

[125] Refayet Ullah Mridha, Bangladesh becoming a lucrative destination for UK investors The Daily Star (Dhaka, 26 September 2017) https://www.thedailystar.net/business/bangladesh-becoming-lucrative-destination-uk-investors-1467766.



Tags : International Relations , International Investment Law




Shahrima Tanjin Arni is the International Affairs Secretary of Dhaka University Central Students' Union (DUCSU).