Comment: U.S. State Department Subcommittee Report on the U.S. Model Bit - Identifying the Questions Raised - WAMR 2010 Vol. 4, No. 2
Since 1984, Professor Jack J. Coe, Jr. has been on
the faculty of Pepperdine Law School where he
teaches private international and commercial law.
He is a Fellow of the American Bar Foundation, an
elected Member of the ALI, an Associate Reporter
on the ALI Restatement (Third) of International
Commercial Arbitration. Coe has held several leadership posts
within professional organizations including: Member, ABA (SIL)
Working Group Revising the 1977 Ethics for Arbitrators; Chair,
Academic Council, Institute for Transnational Arbitration; Chair,
Disputes Division ABA Section of International Law, Co-Chair,
International Commercial Dispute Resolution Committee of the
ABA (SIL); and Co-Chair IBA Sub-Committee on Investor-State
Mediation. Coe’s practical arbitration experience began at the
Iran-U.S. Claims Tribunal, where he served as a Legal Assistant for
two years. A member of the ICDR Panel (AAA), Coe has been both
a party–appointed and institutionally designated arbitrator.
Originally from World Arbitration And Mediation Review (WAMR)
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Comment
U.S. STATE DEPARTMENT SUBCOMMITTEE
REPORT ON THE U.S. MODEL BIT –
IDENTIFYING THE QUESTIONS RAISED
Jack J. Coe, Jr.*
As is widely known, the State Department Subcommittee on
Investment has been tasked with reviewing the US Model BIT.
Based on the Subcommittee's Report,1 I understand that project
to be an exercise bringing together persons familiar with the BIT
process and particularly the 2004 model and predecessor texts in
the BIT U.S. program, and charging them with taking a fresh look
at both newer problems and evergreen issues while drawing on
their diverse backgrounds, perspectives, and priorities. The
Report reflects this diversity in the variant priorities given to the
range of questions considered as well as the spectrum of positions
taken by the individual Subcommittee members.
As a look through the Report will reveal, some of the puzzles
tackled are familiar, while others are freshly emergent. For
instance, should the BIT do more about addressing whether NGOs
can be investors and, if so, what acquisitions and activities
constitute for such organizations an investment? That is, suppose
for instance that an NGO acquires acreage in order to establish a
preserve, or to hold in trust. Is that NGO an investor? Does it
have an investment? State-owned enterprises in turn pose
somewhat different questions. The center of gravity on those
points of discussion seems to be the extent to which those entities
can be made to compete fairly in the marketplace, given their
sovereign benefactors.