Introduction
While the titles of Bilateral Investment Treaties provide an indication of their focus, it is usually in their preambles that the Contracting Parties set out in fuller terms the objectives they are seeking to achieve by concluding such a treaty. This serves as a useful source of reference in the interpretation of the provisions of the treaty, particularly on the question of the original purpose or intent of the Parties.
The expression of such objectives generally takes two main forms. The first is wording that explicitly identifies the specific objective(s) of the Parties, and is usually found in paragraphs starting with words such as “with the aim of”, “for the purpose of”, “seeking to”, “desiring to”, “committed to”, and “intending to”. The second is wording that expresses, among other things, the principles, aspirations or ideals that have guided or driven the Parties to conclude the treaty. It can be seen in paragraphs starting with words such as “understanding”, “emphasising”, “reaffirming”, “expressing”, “recognizing”, “acknowledging”, “agreeing”, “conscious”, “aware” and “convinced”.
This note reviews the practice of a selection of jurisdictions with reference to the second form of wording. A separate forthcoming note covers the wording used in expressing specific treaty objectives.
Principles, Aspirations and Ideals
The wording used in the preambles of treaties concluded by the selected jurisdictions reflects distinct and overlapping themes that are either expressed separately in dedicated paragraphs or combined in the same paragraph. Of these, investment promotion and protection-related perspectives are the most prominent, including the following:
- The need to promote and protect or create favourable conditions for investments made in the territory of one Party by investors of the other Party.
- The need to establish an adequate juridical framework for settling and guaranteeing the promotion and protection of investments, including effective means for the assertion of investment claims and enforcement of investment rights.
- The desirability of fair and equitable treatment of investments, the detrimental effect of nationality-based discrimination, and the need to protect foreign investments on a non-discriminatory basis.
- The role of investment promotion and protection in stimulating investment initiatives or activities, and in increasing the economic growth and prosperity of the Contracting Parties.
- The role of a stable investment framework in promoting the effective utilization of economic resources to improve living standards.