In 2004, the United States government adopted and published a Model Bilateral Investment Treaty that substantially revised the Model Bilateral Investment Treaty previously employed by it in negotiations with other governments over the conclusion of bilateral investment agreements. It has subsequently used the 2004 Model BIT in negotiating bilateral investment treaties, and investment chapters of free trade agreements, with other governments.

In the view of the author, the conception and publication of the 2004 Model was an exercise in the regressive development of international law. It was so contended in some detail in a contribution to Global Reflections on International Law, Commerce and Dispute Resolution: Liber Amicorum in Honour of Robert Briner (2005).

The present chapter is in honor of another major figure in the world of international arbitration, particularly that of international investment law, and more particularly still, that of the International Centre for Settlement of Investment Disputes (ICSID), of which Professor Christoph Schreuer is the leading authority. It does not revisit the extensive terms of the 2004 Model BIT but rather concerns a single provision of it that the author did not address in the Briner essay.

The 2004 Model Bilateral Investment Treaty provides in Article 5, “Minimum Standard of Treatment” that:

1. Each Party shall accord to covered investments treatment in accordance with customary international law, including fair and equitable treatment and full protection and security.

2. […]