During the week of 22 September 2025, States once again met in Vienna under Working Group III (WGIII)...
The global transition to renewable energy systems will be mineral intensive and, under the current linear economy conditions,...
This note provides an overview of the legal options and practical mechanisms for states to address concerns regarding their existing international investment agreements (IIAs).
IIAs (which include bilateral investment treaties and free trade agreements with investment chapters) impose obligations on host states regarding their treatment of foreign investors, and typically provide foreign investors aright to enforce those obligations through investor-state arbitration. Some IIAs also require host countries to liberalize their markets and lock countries into those liberalization commitments. Through those obligations, IIAs can expose host countries to significant potential and actual liability, and can have profound impacts on the development and implementation of industrial and other public policies. Moreover, once IIAs are concluded, both their long lives and the power given to investment tribunals to interpret and apply them, make it difficult for state parties to those treaties to address unintended and unforeseen impacts.
While states can take a fresh look at issues regarding the optimal design and impact of their IIAs when negotiating new treaties, they are more limited in terms of how they address issues that have arisen under existing treaties. Nevertheless, given the number of existing IIAs (over 3,000 worldwide), the potentially broad obligations they impose, and their extended duration, it is crucial for states to examine those IIAs and take steps to clarify uncertainties and ambiguities so that the texts best reflect the signatory states’ intent.
For existing treaties, states have three main options: (1) termination of the treaty, (2) negotiation of amendments to the treaty (or supplanting existing agreements with new ones), and (3) interpretations and clarifications of treaty provisions that must be taken into account by tribunals interpreting the treaties. While all three are important to consider as part of an overall strategy, this note focuses on the third option as it holds promise as an effective, yet relatively low-cost, avenue for avoiding unintended effects of treaty obligations.
