The Emergence of a Sustainable Development-Friendly Model Bilateral Investment Treaties and Its Lesson for Least-Developed Countries

This article argues that the old generation BITs need to be renegotiated in line with domestic development policies in order to contribute to the promotion of sustainable development. Despite the improvements seen in the new model BITs, certain countries, including LDCs, are still entering into BITs framed in line with old generation ones. Recent trends in IIAs show that some countries, especially developed and emerging economies, are increasingly adopting their own new model BITs and negotiating treaties based on it. This article argues that LDCs also need to follow this approach and persuasively present their sustainable development-related interests during BITs negotiation as having one's own model BIT constitutes a negotiating advantage. Every country needs to develop its own model BITs and be committed to negotiating BITs that take into account the domestic development interests of both contracting parties. Accordingly, integrating the lessons drawn upon from the international experiences, this article articulates the sustainable development -oriented concepts and principles that should be considered in developing model BITs for LDCs. It also proposes a number of advanced issues that may make the LDCs model better than some of the existing new model BITs, especially from the perspective of LDCs. For instance, this article points out that LDCs model should require in substantive provisions the need for balancing the economic, social and environmental objectives, and also argues that poverty eradication measures should be permitted as exceptions to the application of minimum standards of treatment.