18
account for most of the variation in the Index scores, are whether national treatment is
granted in both the pre and post-establishment phase, or post-establishment only, and
whether performance requirements are limited or banned.
BITs signed by US
The connection between US BITs and the promotion of a particularly American
and ideological concept of the right of capital would appear to be supported by history.
The US inaugurated both its global and hemispheric BIT programme in the early 1980s
as a response to the assertiveness of developing countries in the United Nations over their
right to expropriate foreign firms, and some of its agreements in the Americas were
signed with a number of client regimes, Panama in 1982, Haiti in 1983, and Grenada in
1986 (Robert 1999, 400; Vandevelde 1998; 628). “Sometimes, model BITs have been
prepared by individual countries that reflect their positions and expectations on
international FDI rules and standards” (UNCTAD 2000b, 21).
In general, US BITs require both pre and post-establishment most-favoured nation
and national treatment – thus preventing signatories from screening FDI prior to entry, or
requiring certain concessions from the firm as a condition for entry. Nonetheless, US
BITs contain an extensive list of general exceptions from MFN and NT treatment. For
example in the US-Boliva BIT, the US reserves the right to deviate from national
treatment in the following matters: “atomic energy; customhouse brokers; licenses for
broadcast, common carrier, or aeronautical radio stations; COMSAT; subsidies or grants,
including government supported loans, guarantees and insurance; state and local
measures exempt from Article 1102 of the North American Free Trade Agreement
Convention