IIA Reform Accelerator Launches

UNCTAD’s IIA Reform Accelerator launched in November 2020.

The Accelerator is a tool that aims to expedite the modernization of the existing stock of old-generation investment treaties. It is meant to help countries overcome the current challenges in IIA reform by suggesting concrete options to reform central IIA provisions. In doing so, the Accelerator provides a tool for coordination, focused discussion, and consensus-building on joint reform actions between multiple countries. It aims to help level the playing field for policy-makers and treaty negotiators by making the latest “IIA reform knowledge” and recent treaty practice more readily accessible. The Accelerator is underpinned by five elements, guiding and enabling change in the IIA regime: (1) An orientation toward sustainable development; (2) principles and options developed in UNCTAD’s longstanding IIA reform policy tools; (3) flexibility to “adapt and adopt” in line with countries’ specific needs; (4) collective peer learning; and (5) capacity building.

UNCTAD’s IIA Reform Accelerator focuses on eight key IIA provisions: (1) the definition of investment; (2) the definition of investor; (3) national treatment (NT); (4) MFN treatment; (5) FET; (6) full protection and security (FPS); (7) indirect expropriation; and (8) public policy exceptions. The selected substantive provisions are those that are most frequently invoked in ISDS claims, including to challenge genuine public interest measures such as those for the protection of public health or the environment. They are also those that have a significant impact on sustainable development or affect the host state’s ability to regulate in the interest of sustainable development. However, as IIA reform is a much wider endeavour, the IIA Reform Accelerator is intended as a starting point and a living document that will be regularly updated and further developed, including through the addition of further treaty provisions.

For each of the eight provisions, the Accelerator offers a menu of sustainable development-friendly options. For each option, the Accelerator offers ready-to-use model language that implements the reform approach and is based on a sample of actual treaties and model IIAs. Geographical representation of treaty parties and their development status has been taken into account in selecting the sample. Explanatory comments and annotations are provided for each model formulation and reform option to highlight their objectives and the interplay between different options. Various options arise for the Accelerator’s use, including as the basis for joint interpretation, amendment, or replacement of old treaty provisions. The Accelerator allows countries to undertake these reform actions bilaterally, regionally, or multilaterally.