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Focus on Regulation

USTR and State Complete Three-Year Review and Unveil 2012 Model BIT

The State Department and the US Trade Representative (USTR) unveiled last week the new US Model Bilateral Investment Treaty (BIT). The release of the 2012 Model BIT signifies the completion of an Obama Administration campaign promise to conduct a thorough review of U.S. investment policy. The 2012 Model BIT retains the core protections set forth in the 2004 Model BIT while also making several significant changes designed to provide broader protections for American investors, to ensure greater transparency, and to expand labor and environment rights.

The 2012 Model BIT attempts to balance investor protections while preserving the Government’s ability to regulate in the public interest. Public reactions to the new BIT were mixed, as expected. Traditional opponents to U.S. investment policy such as Public Citizen decried the 2012 Model BIT, criticizing the Obama Administration for failing to include strong enough labor and environment protections and for preserving the ability of US and foreign businesses to initiate “investor-state” arbitrations. On the other hand, the US business community generally praised the 2012 Model BIT, particularly the new provisions targeting the activities of state-owned enterprises (SOEs). The Emergency Committee for American Trade (ECAT) expressed disappointment, however, that the “new 2012 model BIT does not strengthen core protections for U.S. investors overseas.”

The 2012 Model BIT could reinvigorate the BIT negotiations with both China and India. The US business community has prioritized these negotiations as they could help to open the doors to two of the world’s largest markets. However, in addition to the lengthy delay in the completion of the US Model BIT review, US talks with India and China have been slowed by disagreements over important substantive issues, including investor-state dispute resolution, intellectual property rights, and market access concerns. India’s Ambassador to the United States Nirupama Rao thus welcomed the 2012 Model BIT but was non-committal about whether its release would lead to higher-level negotiations between the US and India.

US Government negotiators are hopeful that ongoing, productive talks with Mauritius could produce the first BIT to be completed with the 2012 Model BIT as its foundation. The prompt completion of a US BIT pursuant to the new text would be an important step for the US Government and the US business community as the United States is not alone in its efforts to open markets through new investment treaties. Negotiators from China, Japan, and Korea reportedly have completed negotiations on a tripartite investment treaty, and the treaty text is expected to be released in the coming months.