Developing The Model Bilateral Investment Treaty Of Myanmar

The provisions included in the old-generation bilateral investment treaties signed by Myanmar with the partner countries are vague,broad,and controversial that can provide the unintended interpretations in investor-state dispute settlement(ISDS).The issue of overlapping between the International Investment Agreements(IIAs)with the same partner countries has given rise to the inconsistency between them that may bring about the treaty shopping activities.On the other hand,the Government’s actions,or measures to respond the current crisis like the COVID-19 pandemic may affect the investment projects that may escalate into the investor-state disputes.Myanmar doesn’t have recent ISDS cases.However,in the country,there are many domestic cases concerned with the foreign investment.These cases can be changed into the ISDS cases in any time.Regarding the foreign direct investment,the experiences of the countries showed that the more the country received,the more ISDS cases they faced.Hence,it is needed to renegotiate the oldgeneration bilateral investment treaties of Myanmar in the ways to protect the state’s power to adopt and maintain its measures for public interests without deviating from the primary objectives of these treaties.Today,Myanmar encounters a number of challenges in the region and so the country may wish to enter the new bilateral investment agreements with the potential partner countries for attracting more foreign investment and establishing the economic relations.That is why Myanmar needs a model bilateral investment treaty with the reform-oriented provisions that ensures the right to regulate of the State without undermining the values of the treaty.The substantive decisions rendered by the arbitral tribunals in ISDS cases over the years are useful sources for studying how the provisions under the IIAs work in practice as well as which provisions are most in need of improvement to avoid the unintended ISDS cases that can impact on the right to regulate of the state.Based on theses facts,many IIA reforms such as preserving the right to regulate of the state,improving investment dispute settlement mechanism,ensuring the responsibilities of the investor etc.,are being performed in the international investment arena.These reforms or developments are reflected in the recent IIAs.In this respect,the reform-oriented provisions included in these recent IIAs could be good models for the developing countries including Myanmar that are using the IIAs as one of the investment promotion strategies.Thus,this paper compares the bilateral investment treaties signed by Myanmar and the modern international investment agreements with the case laws to find any difference that can provide an outlook on possible reforms of the bilateral investment treaties in Myanmar in light of the recent developments of intentional investment law.Furthermore,it examines the reform-oriented models for the individual provisions included in the International Investment Agreements(IIAs)to balance the values of the IIAs and the right to regulate of the State.This paper provides the sound and effective provisions for ensuring the sufficient policy space of the state in order to develop the model bilateral investment treaty.