There are countless stories of countries not caring very much about the Bilateral Investment Treaties (BITs) that they sign. Here’s one example I found for a paper I wrote a few years ago:
The United States signed a BIT with Senegal in 1983 and with Morocco in 1985. These BITs were both approved by the United States Senate on October 20, 1988. By 1990, however, these two partners had still not ratified the agreements. During a hearing held by the Senate Committee on Foreign Relations, Senator Sarbanes asked a State Department Official why Senegal and Morocco had not yet ratified the agreements. The assistant Secretary of State replied by saying that “my understanding is that both governments were looking for an auspicious occasion on which to ratify the agreement, some ceremony. I didn't know this until this morning.” In response, Senator Sarbanes asked: “Would a visit by you be deemed such a sufficient occasion, do you think?” In response, McAllister replied: “I would certainly think so. But I would hope we could do it before that.” This is revealing because Senegal and Morocco were willing to wait over three years to ratify agreements that are reportedly designed to attract investment so that they could have a signing ceremony with even a relatively obscure U.S. official.
The literature is filled with these kind of anecdotes, but most of them are about the process of treaties being signed in a sloppy way. A couple of weeks ago, however, an arbitration panel issued a decision in a dispute with a truly bonkers procedural history that shows countries don’t even pay much attention to BITs even after they are signed.
Here’s the story. In 2014, a man from South Africa brought an international investment dispute against Mozambique. The case was ostensibly brought under a BIT between South Africa and Mozambique that provided for investor-state dispute settlement. Five (!!!) years later, after lengthy proceedings, a motion to dismiss filed by Mozambique was granted. The reason? It turns out the BIT between South Africa and Mozambique never went into force.
But it took Mozambique a while to actually figure that out. In 2016, Mozambique filed a merits brief “totaling 160 pages [that] raised multiple objections to jurisdiction (in 90 paragraphs spread over 46 pages). Nowhere in these did Respondent even hint that the BIT had not entered into force.”
And if it isn’t bad enough that a dispute could drag on for years before it was clear there wasn’t even a valid treaty, here’s the conclusion of the decision:
h/t to @MatthewMorantz for highlighting this wild case.