"Recommendations for Improving BIT Provisions in the Post-COVID-19"
"Table 3.7"

BIT Provision,Definition,Post COVID -19 Recommendation
National treatment,Provision describes the obligation to grant foreign investors treatment no less favorable than domestic investors.,Maintain a degree of flexibility with regard to national tratement. Exempt specific policy areas and viatl economic sectors to meet both current and future regulatory or public policy needs.
Fair and equitable treatment,"Provision describes if IIA stipulates equal treatment between foreign/domestic investment for accessing national courts and agencies, imposing taxes and dealing with domestic regulation.","Clarify scope and obligations of FET standards, FET does not preclude States from adopting good-faith regulatory measures that pursue legitimate policy objectives."
Expropriation,"Provision describes arangements for host government to take over foreign assets. It can be direct (asset appropriation) or indirect (no economic benefit for foreign investors due to loss of management, depreciation, etc.)","Set out criteria that should not be considered an expropriation, e.g. legitimate regulation taken in exceptional circumstances for the public interest."
Most Favored Nation clause,Provision describes the non-discrimination of foreign investment. The more favorable treatment provided to previous agreements is applied to current agreement.,Maintain a degree of flexibility with regard to MFN. Exclude specific areas and vital economic sectors to meet regulatory or public policy needs.
Free transfer of investment-related funds,"Provision describes modalities for repatriation of investment (including profits, benefis, capital gain), proceeds from liquidation or sale, payments.",Provide list of covered payments or transfers and include exceptions in case of serious balance-of-payments difficulties or serious economic crisis.
Non-economic standards,"Provision describes protection to investors that covers non purely economic issues, inclding labour regulations, environmental standards, health and human rights.",Set out investor obligations by raising the obligation to comply with domestic laws and corporate social responsibility clauses.
Access to arbitration,"Provision describes access to arbitration mechanisms, including the International Centre for Settlement of Investment Dispute or other. Existence can be an incentive to invest by providing access to a neutral jurisdiction.","Consider ISDS reform: a standing ISDS tribunal replacing the ad hoc investor-State arbitration, limited ISDS, more State controvle over the ISDS, opening proceedings to the public and third parties, enhancing the suitability and impartiality of arbitrators, replace ISDS by settling disputes in domestic courts or State-State dispute settlement."
Transparency in ISA,"Provision describes existence of ISDM-specification transparent mechanisms (more transparent) or ISDM provisions for the appointment for arbitrators, obligations of parties, enforcement (more restrictive)."

"BIT = bilateral investment treaty, COVID-19 = coronavirus disease, FET = fair and equitable treatment, IIA = international investment agreement, ISDM = Investor–State Dispute Mechanism, ISDS = investor–state dispute settlement, MFN = most-favored nation."


"Source: ADB compilation based on Chaisse (2020) and UNCTAD (2020b)."

Asian Economic Integration Report | Data Catalogue
Asia Regional Integration Center. Economic Research and Regional Cooperation Department (ERCD).
ASIAN DEVELOPMENT BANK