Ámbito de acción del negocio

There is a consensus, in the international community, that structural transformation does not occur by itself, but rather requires a proactive policy that facilitates the transition to new sectors and activities with greater productivity and more added value, and encourage at the same time sustainable and inclusive development. Under this new reality, a process of reforms of the Investment Treaties has begun, which is progressing in the different regions.

In 2015, UNCTAD prepared a Road Map for the Reform of International Investment

Agreements35_{, which is marking the process of reforms of the Investment Treaties. In this}

way, the growing concern regarding the operation of the global regime of Bilateral Investment Treaties currently, added to the current imperative of sustainable development, has triggered a movement towards the reform of international investment regulation to adapt it better to the current regulatory challenges. Based on the actions of UNCTAD, the G-20 has approved the Guiding Principles for the Formulation of

Investment Policies worldwide36_{. As it is known, the G-20 agreements lack binding legal}

34 _{GUNTRIP, E., “Urbaser v Argentina: The Origins of a Host State Human Rights Counterclaim in ICSID} Arbitration?”, Blog of the European Journal of International Law-EJIL Talk, Febraury 10, 2017. (Available in https://www.ejiltalk.org/urbaser-v-argentina-the-origins-of-a-host-state-human-rights-counterclaim-in- icsid-arbitration/).

35 _{UNCTAD, World Investment Report 2015-Reforming International Investment Governance, loc. cit. pp.} 121-ss.

36 _{In July 2016, the G20 Ministerial Meeting held in Shanghai agreed on the G20 Guiding Principles for} Global Investment Policymaking (the Guiding Principles). The Guiding Principles were subsequently endorsed by the G20 Heads of State at the September Hangzhou Summit. (Available in https://www.g20.org/en/g20/previous-summits).

The Renewed Commercial and Investment agreements: The Progressive Incorporation of…

~ 149 ~

force; however, it is especially noteworthy that, in this forum37_{, consensus has been}

reached on the need to reform the international investment regime38_.

In this way, the process of reforming the Bilateral Investment Treaties is being developed on a process of reform of the already existing Agreements39_{, in which the}

following five challenges are being addressed:

- Safeguard the right to regulate for the achievement of sustainable development objectives. Bilateral Investment Treaties may limit the sovereignty of contracting parties in the formulation of national policies. Therefore, the reform of the Investment Treaties must ensure that these limits do not unduly restrict the legitimate formulation of public policies or the achievement of sustainable development objectives. For example, the reconfiguration of the fair and equitable treatment clause is proposed as an option for the reform, designed to broaden the margin of action of the States to articulate public policies in favour of sustainable development.

- Promote and facilitate investments. Most Bilateral Investment Treaties lack effective promotional provisions and only promote investment indirectly, through the protection they offer. It is considered appropriate to include instruments that facilitate investments related to the SGD. The formulation of investment policies is becoming more complex, divergent and uncertain. Considerations of sustainable development make investment policies more complicated and multifaceted, which is why investment promotion policies are particularly relevant.

- Ensure responsible investment: Some options are to add clauses to maintain the level of demand and establish provisions on the responsibilities of investors, such as clauses on compliance with domestic legislation and corporate social responsibility. Only 8% of the measures adopted between 2010 and 2014 had the specific objective of involving the private sector in the fundamental sectors of sustainable

37 _{The G-20 is an international cooperation forum, essentially focused on economic aspects, in which a} diverse group of developed, developing and transition economies is integrated, representing more than two thirds of the outflows of Direct Foreign Investment at the international level. world (including the EU). 38 _{In tune with the reform process, the Guiding Principles identify four fundamental blocks in the reform} process: establishment, protection and treatment, promotion and facilitation, and dispute resolution. 39 _{According to UNCTAD, it proposes ten options to carry out the process of reforms of the international} legal regime of investments: 1) interpret jointly the provisions of the treaties; 2) modify the provisions of the treaties; 3) replace the "outdated" treaties; 4) consolidate the network of International Investment Agreements; 5) manage the relationships between coexisting treaties; 6) refer to global standards; 7) act multilaterally; 8) abandon old unratified treaties; 9) rescind existing old treaties; and 10) withdraw from multilateral treaties. Of all these options, international practice shows that States are proceeding to review the Bilateral Investment Treaties, including renewed components in the legal regime of investments.

Jorge Urbaneja Cillán

~ 150 ~

development (infrastructure, health, education, mitigation of climate change).

- Increase the systemic coherence of the Bilateral Investment Treaty regime. Some options are to improve the coherence of the Bilateral Treaty regime, consolidate and rationalize the Treaty network, manage the interaction between Bilateral Treaties and other regimes of International Law.

- Reform the resolution of investment disputes, this being the reform that, perhaps, has acquired greater relevance. Certainly, from the point of view of sustainable development, the choice of dispute resolution mechanisms between investor and State is not neutral, since the protection of sustainable development varies depending on the characteristics of these mechanisms, the degree of sustainability of the trade and investment agreements, as well as their practical application.

In particular, the proposal for the creation of a Multilateral Investment Tribunal, an initiative that was led by the European Union and has been joined by Canada, having crystallized in the CETA, has acquired special prominence. The main arguments against the creation of a Multilateral Investment Tribunal are based on the fact that many States (as in the case of Canada) offer sufficient internal legal guarantees for investors. On the contrary, the creation of a Permanent Multilateral Court would be a possible solution to the problem of the lack of coherence and uniformity in the jurisprudence of the Arbitral Tribunals. In addition, the defenders of a Multilateral Court consider that this system would allow introducing parameters of transparency in the solution of controversies, surpassing one of the main criticisms, as it is the opacity of the arbitration proceedings40_.

On the basis of the elements described, the reform of the Bilateral Investment Treaties is well advanced in all regions. Since 2012, more than 150 countries have adopted measures to formulate a new generation of Bilateral Treaties aimed at sustainable development. For example, they have reviewed their treaty networks and their model treaties in accordance with the Reform Package for the International Investment Regime of UNCTAD. Unlike the Bilateral Treaties that had been signed at the beginning of 21st

Century, all treaties concluded in 2017 include at least six “elements of reform”, and some provisions that were considered innovative in the Bilateral Investment Treaties prior to 2010 now appear regularly. The highlights of the renewed investment treaties include an

40 _{UNCTAD, World Investment Report 2015-Reforming International Investment Governance, loc. cit. pp.} 140-ss.

The Renewed Commercial and Investment agreements: The Progressive Incorporation of…

~ 151 ~

orientation towards sustainable development, the preservation of the State's regulatory space and the improvement (or omission) of the international arbitration system41_.