THE AUTHORS:<\/strong> On Tuesday, March 24, 2026, Wordstone Dispute Resolution<\/strong><\/a> and the associations Paris Investment Arbitration Group (“PIAG<\/strong>“), led by Ms Jelena Todi\u0107 and Ms Charlotte Matthews, and Young International Federation for Investment Law and Arbitration (“YIFILA<\/strong>“), led by Ms Stephanie Collins and Ms Emma Iannini, organized a conference on new generation Bilateral Investment Treaties (\u201cBITs<\/strong>\u201d).<\/p>\n\n\n\n The panel, moderated by Ms Audrey Caminades<\/a><\/strong> (Of Counsel at Wordstone Dispute Resolution), included Ms Marija \u0160obat<\/strong><\/a> <\/strong>(Senior Associate at GBS Disputes<\/a>), Ms Jennifer Younan<\/a><\/strong> (Partner at A&O Shearman<\/a>), Ms Anna Toubiana<\/a><\/strong> (Legal Counsel at the International Centre for Settlement of Investment Disputes (\u201cICSID<\/strong>\u201d)<\/a>, and Mr Olivier Whitehead <\/strong>(Legal Counsel at the Ministry of Foreign Affairs of the Netherlands).<\/p>\n\n\n\n Ms Caminades began the conference by highlighting that despite years of practice and case law, there is still no universal consensus on the definition of an investment or on the scope of TBI protections. She explained that the conference would examine whether BITs have undergone substantive changes, and the panelists would explore whether new-generation BITs seek to rebalance protection between investors and States or to grant greater regulatory autonomy to the latter, or whether they merely constitute updated versions of earlier treaties that had been criticized, inter alia<\/em>, for being overly favorable to investors.<\/p>\n\n\n\n The discussion was structured around three main topics: the content of \u201cnew generation\u201d treaties; their practical application; and the question of whether these developments should be considered as reform, rebrand or reset.<\/p>\n\n\n\n Ms \u0160obat began the first topic by discussing the provisions of the treaties. She provided historical context on expropriation<\/a>, explaining that it evolved from the idea of the State seizing de facto<\/em> ownership control to encompassing the taking of contractual rights through a diminution of value. She added that contractual rights were often overlooked in the general understanding of expropriation, and that decisions rendered by different tribunals expanded the modern concept to include not only property rights and titles but also contractual rights, along with a depreciation in property value. The focus is therefore no longer limited to de facto <\/em>ownership. New expropriation provisions can be found, for example, in the Canada Model BIT.<\/p>\n\n\n\n Ms. Toubiana then continued by exploring the shift toward transparency<\/a> between the new BITs and the earlier ones. Previously addressed only during negotiations, transparency is now an integral part of the procedure. She noted that at the end of the 19th century, transparency was not a consideration. Over the years, States began to move away from this approach, as illustrated by BIT models such as the Colombian or Canadian ones. Today, the 2022 ICSID Arbitration Rules establish transparency as a default rule, and confidentiality must be affirmatively requested by the parties. Parties can now agree, in a specific procedural order No. 2, on transparency and confidentiality provisions concerning the publication of awards, orders and decisions, other documents filed in the proceedings, transcripts and recordings of hearings, open hearings, and the definition of confidential and protected information.<\/p>\n\n\n\n Mr Whitehead spoke about the interplay between law and policy over time. He noted that transparency provisions are increasingly featured in new treaties as a result of evolving policy considerations. He then turned to the second topic, namely the obligations included in the new BITs. He gave the example of the 2019 Dutch Model BIT, which was revised to provide more balanced obligations, guarantees, and policy freedoms. He observed that Dutch politics play a role in shaping the content of treaties and that BITs are now regarded as useful instruments in support of other policy objectives, such as sustainable development, which has in turn led to the incorporation of corresponding provisions into the model BIT.<\/p>\n\n\n\n Ms. Younan discussed the investor-State dispute settlement (\u201cISDS<\/strong>\u201d) provisions, which are generally converging with the provisions included by States in their BITs, albeit with certain exceptions. States continue to maintain ISDS mechanisms, though with some reservations. She noted that in the new BITs, States tend to codify or modify existing provisions, while also incorporating additional considerations such as gender, geographical and age diversity, as well as the balance between common law and civil law traditions. She further noted that the introduction of mediation as a preliminary phase constitutes a notable development, and that provisions prohibiting double-hatting in ICSID proceedings have emerged.<\/p>\n\n\n\n The speakers noted that a large percentage of case law in arbitration is still based on older treaties, making it complicated to assess the real effect of new BITs. In this regard, it was observed that since the publication of the 2019 Dutch Model BIT, there have been no new BITs signed, although some negotiations are ongoing. He said he sees a role for the U.N. Working Group III and that modernization can be seen through efforts such as multilateral forums. He stated that underlying policy for new-generation BITs can be achieved in current arbitration on the basis of old treaties.<\/p>\n\n\n\n However, Ms. Younan said that the fact that a large percentage of case law in arbitration is still based on older treaties can make it complicated to assess the real effect of the new BITs. To illustrate this point, she cited examples such as Eco Oro v. Colombia,<\/a><\/em> which shows efforts on the part of States in adopting new BITs with new provisions, but arbitral tribunals still heavily rely on old treaties or precedents based on earlier BITs. She also cited a study by Wolfgang Alschner entitled Investment Arbitration and State-driven Reform: New Treaties, Old Outcomes <\/em>to illustrate the impact of awards based on old TBIs on the new treaties.<\/p>\n\n\n\n Ms. Toubiana then agreed that there has not been enough time to observe the global effects of the new BITs. Even though the language is evolving, older treaties still have an impact.<\/p>\n\n\n\n Ms. \u0160obat then returned to the issue of expropriation, citing new US, Canadian, and Chinese BITs that contain provisions on expropriation. She described some provisions that we can observe, i.e <\/em>indirect expropriation that can be excluded from the definition of the expropriation in the BITs\u2019 provisions; application to regulatory measures; and regulatory definitions aiming to frame expropriation. She finished her explanation by saying it is more difficult to agree that a discriminatory measure can constitute expropriation, and there is more space for interpretation.<\/p>\n\n\n\n The question remains: who will decide on the new BITs\u2019 application? The arbitral tribunals, and thus we may return to older precedents. Essential national security provisions have also been added, addressing fundamental issues for the State, and are increasingly invoked.<\/p>\n\n\n\n The panelists concluded the conference by reiterating that progress is slow and that it will take time to actually see the real impact of the modernization of BITs in practice.<\/p>\n\n\n\n This article was originally published in PBA Bulletin on 17 April 2026, as part of a special edition curated by Paris Baby Arbitration (PBA)<\/a>, in collaboration with Jus Mundi <\/a>and Jus Connect<\/a>.<\/p>\n\n\n\n
Satine Berton, <\/strong>Master 2 Economic Litigation and Arbitration Candidate at Sciences Po Paris<\/strong>
April Hoang,<\/strong> Master 2 International and European Law Candidate at Universit\u00e9 C\u00f4te d\u2019Azur, Nice<\/strong><\/p>\n\n\n\n
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As part of Paris Arbitration Week 2026, Paris Baby Arbitration (PBA)<\/a><\/strong>, in collaboration with Daily Jus<\/a><\/strong> and Jus Mundi<\/a><\/strong>, brings together contributions in a special edition of PBA Bulletin<\/a>,<\/strong> sharing reflections and perspectives from across this year\u2019s events.<\/em><\/h4>\n<\/blockquote>\n\n\n\n
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