BITs in pieces

Countries sign Bilateral Investment Treaties (BITS) to attract foreign investments to enhance manufacturing, generate jobs, and seek new technologies for sustained economic activity.

A surfeit of BITs since the 1990s, about 3,000 worldwide, was a consequence of the embrace of the "Washington Consensus" that advocated liberalisation. That bonhomie seems to be over now with BITS facing a backlash largely owing to the contentious "Investor State Dispute Settlement" (ISDS) that empowers a foreign investor to directly bring claims and seek compensation against the state through arbitration. Prabhash Ranjan, an expert on international investment law, puts in perspective in his new book the controversy surrounding ISDS, dispassionately covering competing narratives.

Dr Ranjan quotes a study from the United Nations Conference on Trade and Development to dispel the popular notion that ISDS claims cause huge financial burdens on the host country. According to the study, 1,257 publicly known ISDS claims have been initiated so far, an average of 35 annually. Only in 13 cases did the compensation awarded exceed $1 billion; in 178 cases, it was less than $100 million; and in more than half of all cases, the damages were less than $16 million on average. Hard to explain, however, is the fact that the maximum ISDS claims were made against developing countries that, with meagre financial wherewithal and deficient expertise in trade law, invariably end up in losing battles, sacrificing scarce resources meant to address livelihood issues.