The First Bilateral Investment Treaties U.S. Postwar Friendship, Commerce, and Navigation Treaties

The First Bilateral Investment Treaties is the first and only history of the U.S. postwar Friendship, Commerce, and Navigation (FCN) treaty program, and focuses on the investment-related provisions of those treaties. The 22 U.S. postwar FCN treaties were the first bilateral investment treaties ever concluded, and nearly all of the core provisions in the modern network of more than 3000 international investment agreements worldwide trace their origin to these FCN treaties. This book explains the original understanding of the language of this vast network of agreements which have been and continue to be the subject of hundreds of international arbitrations and billions of dollars in claims. It is based on a review of some 32,000 pages of negotiating history housed in the National Archives.

This book demonstrates that the investment provisions were founded on the New Deal liberalism of the Roosevelt-Truman administrations and were intended to acquire for U.S. companies investing abroad the same protections that foreign investors already received in the United States under the U.S. Constitution. It chronicles the failed U.S. attempt to obtain protection for investment through the proposed International Trade Organization (ITO), providing the first and only history of the investment-related provisions in the ITO Charter. It then shows how the FCN treaties, which dated back to 1776 and originally concerned with establishing trade and maritime relations, were re-conceptualized as investment treaties to provide investment protection bilaterally. This book is also a work of diplomatic history, offering an account of the negotiating history of each of the 22 treaties and describing U.S. negotiating policy and strategy.

Kenneth J. Vandevelde is Professor of Law at Thomas Jefferson School of Law where he teaches international investment law and arbitration as well as public international law. He served as President and Dean of the law school from 1994 to 2005. Professor Vandevelde published extensively on international investment law, arbitration, and bilateral investment treaties authoring: United States Investment Treaties: Policy and Practice (1992), U.S. International Investment Agreements (Oxford, 2009), and Bilateral Investment Treaties: History, Policy, and Interpretation (Oxford, 2010). He published a number of articles on international investment law included in the American Journal of International Law and the Harvard Journal of International Law. He served as a consultant on international investment law to the Senate Foreign Relations Committee, the United Nations and various foreign governments. He worked at the U.S. Department of State's Office of the Legal Adviser and the Executive Office of the President on international investment law, and advised foreign governments on investment treaty negotiations.

Introduction
About This Book
New Deal Liberalism
New Deal Liberalism in U.S. Foreign Investment Policy

1. U.S. Postwar Foreign Investment Policy
Promoting Global Full Employment
The Role of International Investment
The Need to Promote and Regulate International Investment
Developing a Foreign Investment Policy


2. Launching the U.S. Postwar FCN Treaty Program
Inauguration of the U.S. Postwar FCN Treaty Program
Preparing a Standard Draft Treaty
The Influence of the American Business Community
Negotiating the First Postwar FCN Treaty: China
Negotiating an FCN Treaty with Italy
Proposing an FCN Treaty with the Soviet Union

3. Seeking a Multilateral Treaty on Investment: The International Trade Organization
The Proposal for an International Trade Organization
The London Preparatory Meeting
The Proposal for an Investment Code
Drafting an Investment Code
Proposing an Investment Code in Geneva
Amending the U.S. Proposal in Geneva
Negotiating the U.S. Proposal in Geneva
The Cold War Comes to Geneva

4. Abandoning the International Trade Organization
Devising a Strategy for the Havana Conference
The Havana Conference
The Aftermath of the Havana Conference


5. The FCN Treaties Become Investment Treaties
Truman Proposes the Point Four Program
Creating a Point Four Program
Contemplating a New Investment Treaty
Point Four Assistance and FCN Treaties
Negotiating an FCN Treaty with Colombia
Negotiating an FCN treaty with Uruguay
Negotiating an FCN Treaty with Ireland
Senate Advice and Consent to Ratification 1950

6. Negotiating the First Bilateral Investment Treaties: The Truman Years
U.S. Negotiating Strategy
Negotiating an FCN Treaty with Greece
Negotiating an FCN Treaty with Denmark
Negotiating with Italy -- Again
Negotiating an FCN Treaty with Israel
Negotiating an FCN Treaty with Ethiopia
Negotiating an FCN Treaty with Japan
Senate Advice and Consent to Ratification 1952-1953
Investment Treaties at the End of the Truman Administration

7. Negotiating the First Bilateral Investment Treaties: After the Truman Years
Negotiating an FCN Treaty with Germany
Negotiating an FCN treaty with Haiti
Negotiating an FCN Treaty with Iran
Negotiating an FCN Treaty with Nicaragua
Negotiating an FCN Treaty with the Netherlands
Negotiating an FCN Treaty with Korea
Negotiating an FCN treaty with the Sultanate of Muscat and Oman
Negotiating an FCN Treaty with Pakistan
Negotiating an FCN Treaty with France
Senate Advice and Consent to Ratification 1960
Negotiating an FCN treaty with Belgium
Negotiating an FCN Treaty with Vietnam
Senate Advice and Consent to Ratification 1961
Negotiating an FCN Treaty with Togo
Negotiating an FCN Treaty with Thailand
Continuity in the Kennedy, Johnson, Nixon and Ford Administrations


8. The International Law of Foreign Investment in the FCN Treaties
Companies Protected by the Treaty
Fair and Equitable Treatment
Most Constant Protection and Security
Treatment in Accordance with International Law
Unreasonable or Discriminatory Measures
National Treatment
Most Favored Nation Treatment
Expropriation
Exchange Controls
Employment
Entry and Sojourn
Judicial Access
CoTransparency
International Peace and Security
Essential Security Interests
Consultations
Compromissory Clause

Epilogue

Appendix
Excerpts from the 1955 Standard Draft U.S. FCN Treaty

Index