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

Abstract

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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