Comment: A Defense of the 2004 United States Model Investment Treat - WAMR 2010 Vol. 4, No. 2
Barton Legum is a partner in the Paris office of
Salans and head of the firm’s investment treaty
arbitration practice. He has over 20 years’
experience in litigating complex cases, with a
focus on international arbitration and litigation in general and
arbitration under investment treaties in particular. From 2000 to
2004, Mr. Legum served as Chief of the NAFTA Arbitration
Division in the Office of the Legal Adviser, United States
Department of State. Mr. Legum is a member of the Executive
Committee, the Council and the Administration Committee of the
American Bar Association’s Section of International Law, and
serves as the Section’s Vice Chair. He will become Chair of the
Section in 2012. He is the editor of International Litigation
Strategies and Practice (2005), a book published by the American
Bar Association, and frequently writes and speaks at conferences
on international arbitration and litigation.
Originally from World Arbitration And Mediation Review (WAMR)
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Comment
A DEFENSE OF THE 2004 UNITED STATES
MODEL INVESTMENT TREATY
Barton Legum*
An experienced lawyer will tell you that a sign of a good
compromise is that both parties are equally dissatisfied with the
outcome. The discontent expressed concerning the 2004 United
States Model Investment Treaty by both business and civil society
groups may reflect just how good a compromise that document
strikes.1
In this comment, developed from my remarks at the 7th
Annual ITA-ASIL Conference in March 2010, I first briefly
consider the context in which the 2004 model was elaborated and
then address some of the changes it effected.
I. THE CONTEXT
The 2004 model was the first to be prepared in the new era of
widespread investment treaty arbitration -- including the
substantial investment treaty arbitration cases brought against
the U.S. government under the North American Free Trade
Agreement ("NAFTA").2 As a result, the 2004 model was the first
prototype that was developed with significant input from a wide
range of agencies within the U.S. government, including, notably,
the principal regulatory agencies. Previous models reflected
careful input from regulatory interests of the U.S. Treasury
Department;3 but the 2004 model reflected a much wider
participation by regulatory agencies.