CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW (CIEL)

INVESTMENT PROVISIONS IN THE KOREA FTA: A RADICAL SHIFT OF POWER TO FOREIGN INVESTORS

SUMMARY

The investment provisions in the Korea-U.S. Free Trade Agreement (Korea FTA) constitute a major and potentially devastating change in U.S. investment policy. For example, new language radically changes the test for what constitutes an expropriation, making it considerably more likely that good faith environmental, health and safety regulations will be found to be expropriations requiring compensation. Other language makes that perverse result even more likely with respect to efforts to regulate emerging technologies, such as biotechnology or nanotechnology. Another example is that new language declares that all contract rights are property rights subject to investor-State arbitration. These and other provisions differ in important respects from language in preceding U.S. agreements—including the U.S. Model Bilateral Investment Treaty (BIT) and other recent free trade agreements (FTAs). The expropriation provisions in the Korean FTA have no precedent in U.S. law, and they unquestionably provide foreign investors greater protection than U.S. investors have in the United States.