BIT Planning for Central Asia: The Problem of Negotiations and Definitions
Published 20 August 2019
Solving the problems of negotiation and definitions of the bilateral investment treaties (BITs) of Central Asia should become a priority for policymakers of the region in the near future. Some arbitrators in cases involving Central Asian jurisdictions have identified that the applicable BITs lacked “insistency on additional requirements” in the negotiation of substantive standards. This paper examines the BITs concluded by the Central Asian states and the available investor-state claims in which they participated. The principal criticism of the BITs of Central Asia is that they are based on an older way of functioning. This brings more uncertainty to investor-state dispute settlement (ISDS) practice, and they are inconsistent in their treaty language. The main argument of the paper is that the BITs of Central Asia have failed to have a basic framework of negotiation as well as clear definitions of the investment standards. Thus, the main idea of the paper is to suggest planning BITs with optimal rules and definitions. As variations in interpretation of investment concepts affect the results of investment disputes, the prevention of less predictable outcomes must be reflected in the BITs. It is argued here that an innovative approach for improved substantive standards for the relevant BITs should come from the Central Asian states themselves, since they are in the best position to appreciate their situation, and it should increase the awareness of their obligations under their investment treaties.
This paper will be part of the TDM Special Issue on "The Changing Paradigm of Dispute Resolution and Investment Protection in Post-soviet and Greater Eurasian Space". More information here www.transnational-dispute-management.com/news.asp?key=1745