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Regulatory Chill and the Effect of Investor State Dispute Settlements

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  • Eckhard Janeba

Abstract

Legal conflicts between multinational firms and host governments are often decided by international arbitration panels - as opposed to courts in the host country - due to provisions in international investment agreements known as Investor State Dispute Settlements (ISDS). Critics fear that ISDS panels favor multinational firms, and thus make governments reluctant to adopt appropriate policies (regulatory chill). In this paper I develop an economic model to define regulatory chill and to analyze the effects of ISDS. Regulatory chill occurs when losses from regulatory mismatch are intermediate rather than very high. Moreover, if national courts are more likely to decide in favor of the host government than an international court, a unilateral shift to ISDS by one country is welfare worsening for the country. The net welfare change is more favorable, and sometimes - but not always - positive, when i) (symmetric) countries switch together to an ISDS based system, and when ii) foreign investment responds elastically to profit conditions.

Suggested Citation

  • Eckhard Janeba, 2016. "Regulatory Chill and the Effect of Investor State Dispute Settlements," CESifo Working Paper Series 6188, CESifo Group Munich.
  • Handle: RePEc:ces:ceswps:_6188
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    References listed on IDEAS

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    1. P Srinivasan, 2011. "Determinants of Foreign Direct Investment in SAARC Nations: An Econometric Investigation," The IUP Journal of Managerial Economics, IUP Publications, vol. 0(3), pages 26-42, August.
    2. Eric Neumayer & Peter Nunnenkamp & Martin Roy, 2016. "Are stricter investment rules contagious? Host country competition for foreign direct investment through international agreements," Review of World Economics (Weltwirtschaftliches Archiv), Springer;Institut für Weltwirtschaft (Kiel Institute for the World Economy), vol. 152(1), pages 177-213, February.
    3. Gary S. Becker, 1974. "Crime and Punishment: An Economic Approach," NBER Chapters,in: Essays in the Economics of Crime and Punishment, pages 1-54 National Bureau of Economic Research, Inc.
    4. Marco Bronckers, 2015. "Is Investor–State Dispute Settlement (ISDS) Superior to Litigation Before Domestic Courts? An EU View on Bilateral Trade Agreements," Journal of International Economic Law, Oxford University Press, vol. 18(3), pages 655-677.
    5. Bruce A. Blonigen & Jeremy Piger, 2014. "Determinants of foreign direct investment," Canadian Journal of Economics, Canadian Economics Association, vol. 47(3), pages 775-812, August.
    6. Kohler, Wilhelm Kaspar & Stähler, Frank, 2016. "The Economics of Investor Protection: ISDS versus National Treatment," Annual Conference 2016 (Augsburg): Demographic Change 145652, Verein für Socialpolitik / German Economic Association.
    7. Berger, Axel & Busse, Matthias & Nunnenkamp, Peter & Roy, Martin, 2011. "More stringent BITs, less ambiguous effects on FDI? Not a bit!," Economics Letters, Elsevier, vol. 112(3), pages 270-272, September.
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    Cited by:

    1. Martin Richardson & Frank Stähler, 2017. "International Agreements, Economic Sovereignty and Exit," ANU Working Papers in Economics and Econometrics 2017-657, Australian National University, College of Business and Economics, School of Economics.
    2. Schjelderup, Guttorm & Stähler, Frank, 2017. "Investor State Dispute Settlement and Multinational Firm Behavior," Discussion Papers 2017/4, Norwegian School of Economics, Department of Business and Management Science.

    More about this item

    Keywords

    Investor State Dispute Settlement; TTIP; regulatory chill; international investment agreement; foreign direct investment;

    JEL classification:

    • F23 - International Economics - - International Factor Movements and International Business - - - Multinational Firms; International Business
    • F53 - International Economics - - International Relations, National Security, and International Political Economy - - - International Agreements and Observance; International Organizations
    • H25 - Public Economics - - Taxation, Subsidies, and Revenue - - - Business Taxes and Subsidies

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