Does Bangladesh Need a Model BIT

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Offline Abu Saleh

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Does Bangladesh Need a Model BIT
« on: November 15, 2018, 06:03:12 PM »
                                                                       Does Bangladesh Need a Model BIT

Bangladesh has signed 30 BITs in total, out of which 5 are not yet in force and BIT with Thailand had been terminated.  Apart from these BITs, Bangladesh is a party some other agreements which have chapter on investment protection laws.  It is unfortunate that investment agreements concluded at different times with different countries did not envision any longstanding policy objectives from Bangladesh perspective, rather these agreements seem to become plain vehicle of safeguarding investor’s interest only.
There are also conflict of obligation between BITs and WTO laws in some cases. Though, being a member of LDCs, Bangladesh does not need to provide patent protection to pharmaceutical products under WTO law, but investors may legally litigate TRIPs Doha flexibilities under BITs.  All the BITs of the county excluding the Bangladesh-German BIT,  expressly recognize intellectual property rights held by the investor as a form of investment. These BITs include pharmaceutical patent under definition of investment either as part of IPR rights or as part of patent right. Besides, most of the Bangladesh’s BITs contain broad assets based definition which cover every kinds of IPRs acquired in the country even if those are not specifically dealt with under TRIPS agreement.
There has been a proliferation of bilateral investment treaties (BITs), from 500 in 1990s to more than 3324 by the end of 2016. This proliferation of investment treaties has been described as constituting a regime of international investment. The rapid increase in the number of BITs has also been accompanied by skyrocketing of investor-State dispute settlement (ISDS) cases, from little more than 50 in 1996 to 767 as of 1 January 2017.Foreign investors, using the ISDS provisions in different BITs, have challenged a very wide array of host State’s regulatory measures.  Bangladesh has already attracted two BIT claim against it.  In spite of signing quite a large number of BIT, the country faced only two cases simply does not mean that the country should not be worried about the future disputes. LDC graduation of Bangladesh brings the urge of revisiting BITs in limelight. Indian case study also signifies that the country should immediately revisit all BITs and have a model BIT for future negotiation. It has become too long to have a model treaty to balance investor’s interests with national policy goals.