Bilateral Investment Treaties and Amendments to the Corresponding Private Investment Contracts are Long Overdue: They Fail to Cater for the Interests of Both Investors and Beneficiaries

Anna Lefcovitch, Solicitor, Arcadis LLP
Professor Charles Chatterjee, Associate Fellow , Institute of Advanced Legal Studies

Revised policies for drafting bi-lateral investment agreements and investment contracts as products of these agreements are long overdue. By the same token, a reflection on the attitudinal changes on the part of developing countries, in general, and at the same time a change of investment policies on the part of developed countries are also long overdue. This Article has made attempts to justify the above-mentioned issues, and suggests that attitudinal changes on the part of private foreign investors are needed, and consequently the old-fashioned drafting of private foreign investment contracts too. The other issue which also needs to be reviewed is the perception of “risks” often held by the majority of private foreign investors (transnational corporations). One of the issues highlighted in this Article is how real are these risks, although it must be maintained that in the case of state contracts, the sovereign party to an investment contract can always present risks, but based on empirical studies, it may be maintained that in order to minimise the incidence of risks in private foreign investments, both parties are required to create an atmosphere of mutual understanding and benefits to each other. Herein lies the importance of negotiating techniques in transnational investment contracts. The opinions expressed in this Article are those of the authors, and in no way may be attributed to the institutions with which the authors are affiliated.

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UK Contract Banking & Finance May 2020 Vol.13, No. 51, Spring 2020

Anna Lefcovitch

Anna Lefcovitch is currently employed as an in-house solicitor at Arcadis LLP, and has considerable experience in commercial and construction law. She studied law at University College London and London Guildhall University. She has been working as an in-house lawyer for 20 years.

Professor Charles Chatterjee

Professor Charles Chatterjee who studied law at the University of Cambridge and the University of London is a Barrister in England and Wales and has also acted as an arbitrator. A commercial law specialist (international) with special interest and knowledge in international organisations and their functions in addition to court experience in law as a practising barrister in England and Wales. A consultant to international organisations and private corporations in addition to conducting capacity building training programmes in various countries. Articles in IICJ: “Recognition and Enforcement of Arbitral Awards: How Effective is Article V of the New York Convention of 1958?” International In-house Counsel Journal Vol. 9, No. 36, Summer (2016), 1 “Decisions of ICSID Tribunals on Procedural Issues may not be Confused with their Awards” International In-house Counsel Journal Vol. 10, No 37, (2016) “CAPE DISTRIBUTION LTD v CAPE INTERNATIONAL HOLDINGS PLC How a Parent Company May be Held Liable in Torts for the Negligence of its Subsidiaries”, International In-house Counsel Journal Vol.11, No. 42, (2018)

Institute of Advanced Legal Studies

Academic Institution

Arcadis LLP

Design & Consultancy for natural and built assets

UK Contract Banking & Finance May 2020 Vol.13, No. 51, Spring 2020