Investment treaty practice

Model BIT

Does the state have a model BIT?

Spain does not currently negotiate its BITs on the basis of a published current model BIT. Various historic models have been the basis for BITs concluded in the recent years, but they do not give insight into the current thinking of the state.

Spain’s most recent BIT was negotiated with Colombia in 2021. It is not yet in force.

Preparatory materials

Does the state have a central repository of treaty preparatory materials? Are such materials publicly available?

Spain does not make treaty preparatory materials public.

Scope and coverage

What is the typical scope of coverage of investment treaties?

Spain’s BITs contain broad definitions of ‘investor’ and ‘investment’, in line with common treaty practices. Each BIT, however, needs to be considered on its own terms as occasionally there are differences in the specific drafting of these provisions.

Protections

What substantive protections are typically available?

Spain’s BITs reflect the general standards of treatment and protection that are commonly available under such treaties. These include:

  • protection against unlawful expropriation (expropriation is legal provided it is accompanied by prompt, adequate and effective compensation, is carried out in the public interest in a legally established manner, and is non-discriminatory);
  • fair and equitable treatment (Spain’s BITs, in line with those of many countries, are broadly drafted and leave significant discretion to the tribunal to interpret this standard);
  • national treatment;
  • most favoured nation treatment;
  • non-discrimination; and
  • an umbrella clause.

 

Each BIT needs to be considered on its own terms as there are occasional differences in the specific drafting of these provisions.

Dispute resolution

What are the most commonly used dispute resolution options for investment disputes between foreign investors and your state?

The majority of investment disputes with Spain have been brought before the International Centre for Settlement of Investment Disputes (ICSID). However, a few claims have been registered with the International Court of Arbitration and the Arbitration Institute of the Stockholm Chamber of Commerce, and one claim is being administered by the Permanent Court of Arbitration under the United Nations Commission on International Trade Law rules.

Confidentiality

Does the state have an established practice of requiring confidentiality in investment arbitration?

Spain typically insists that all aspects of an arbitration remain confidential.

Insurance

Does the state have an investment insurance agency or programme?

No.