Reforming the Bilateral Investment Treaty Landscape in the Caribbean Region: A Clarion Call

Abstract

—This article engages in an empirical assessment of the 55 Bilateral Investment Treaties (BITs) that, to date, have been concluded by 12 Caribbean countries, in order to determine the extent to which, in light of extant arbitral practice, there is a need for reform of the BIT landscape in the region. The article makes the central argument that although most Caribbean countries are capital-importing jurisdictions that are vulnerable to external shocks, including a multiplicity of claims brought by foreign investors, Caribbean governments have been slow to make changes to most regional BITs, many of which contain glaring weaknesses, and the majority of which were concluded more than two decades ago. It contends that, having regard to extant arbitral jurisprudence, which interprets various provisions of BITs in a manner that is often contradictory and even hostile to the interests of developing States, the time is ripe for reform of the regional BIT landscape. The article adopts a comparative approach to its discussion of the various provisions of regional BITs, and relies heavily on arbitral awards involving a range of countries across the globe on myriad controversial issues so as to illustrate areas in which incoherence, inconsistency and unpredictability exist, where regulatory chill is possible, and where reform is accordingly necessary.