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Reasons not to Exit? A Survey of the Effectiveness and Spillover Effects of International Investment Arbitration

Author

Listed:
  • Duy Vu

    (Université Côte d'Azur
    GREDEG CNRS, France)

Abstract

One of the most important characteristics of an investment treaty is that often it grants aggrieved investors access to international arbitration. This arbitration system does not require a foreign investor to petition his home state in order to bring claims against a host state, and provides an alternative to resolving disputes in the host state’s local court. Although international investment arbitration is beneficial for countries in terms of foreign direct investment, it has been accused of not being transparent or effective especially in relation to environment or public health cases. Some countries expressed their discomfort with the current international investment law regime by radical exit solutions such as denunciation of the Convention on the settlement of investment disputes between states and nationals of other states, rejection of investor-state dispute settlement provisions and unilateral denunciation of investment treaties. Based on a vast law, economics and political science literature, this paper proposes arguments to examine these criticisms. First, it is argued that investor-state arbitration is currently a concern in both developing and developed countries. Second, although assessing the spillover effects of arbitration outcomes on some dimensions of public interests such as the environment or public health is not straightforward, the uncertainty that leads to arbitrariness and sometimes inconsistencies in arbitral decision-making exists and needs to be properly identified. Finally, this article argues that exit is not efficient at either the national or international levels, and that it is possible for countries to adapt the current regime to new situations without wholesale exit.

Suggested Citation

  • Duy Vu, 2018. "Reasons not to Exit? A Survey of the Effectiveness and Spillover Effects of International Investment Arbitration," GREDEG Working Papers 2018-35, Groupe de REcherche en Droit, Economie, Gestion (GREDEG CNRS), University of Nice Sophia Antipolis.
  • Handle: RePEc:gre:wpaper:2018-35
    as

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    References listed on IDEAS

    as
    1. 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.
    2. Dreher, Axel & Mikosch, Heiner & Voigt, Stefan, 2015. "Membership has its Privileges – The Effect of Membership in International Organizations on FDI," World Development, Elsevier, vol. 66(C), pages 346-358.
    3. Tang, Man-Keung & Wei, Shang-Jin, 2009. "The value of making commitments externally: Evidence from WTO accessions," Journal of International Economics, Elsevier, vol. 78(2), pages 216-229, July.
    4. Dreher, Axel & Voigt, Stefan, 2011. "Does membership in international organizations increase governments' credibility? Testing the effects of delegating powers," Journal of Comparative Economics, Elsevier, vol. 39(3), pages 326-348, September.
    5. repec:bla:glopol:v:7:y:2016:i:4:p:571-576 is not listed on IDEAS
    6. Allee, Todd & Peinhardt, Clint, 2011. "Contingent Credibility: The Impact of Investment Treaty Violations on Foreign Direct Investment," International Organization, Cambridge University Press, vol. 65(03), pages 401-432, July.
    7. Andrei A. Levchenko, 2007. "Institutional Quality and International Trade," Review of Economic Studies, Oxford University Press, vol. 74(3), pages 791-819.
    8. Downs, George W & Jones, Michael A, 2002. "Reputation, Compliance, and International Law," The Journal of Legal Studies, University of Chicago Press, vol. 31(1), pages 95-114, January.
    9. Christophe Charlier, 2012. "Distrust and Barriers to International Trade in Food Products: An Analysis of the US — Poultry Dispute," GREDEG Working Papers 2012-02, Groupe de REcherche en Droit, Economie, Gestion (GREDEG CNRS), University of Nice Sophia Antipolis, revised Nov 2013.
    10. Feldstein, Martin, 1999. "A Self-Help Guide for Emerging Markets," Scholarly Articles 2961700, Harvard University Department of Economics.
    11. Federico M. Lavopa & Lucas E. Barreiros & M. Victoria Bruno, 2013. "How to Kill a BIT and not Die Trying: Legal and Political Challenges of Denouncing or Renegotiating Bilateral Investment Treaties," Journal of International Economic Law, Oxford University Press, vol. 16(4), pages 869-891, December.
    12. Molly Lesher & Sébastien Miroudot, 2006. "Analysis of the Economic Impact of Investment Provisions in Regional Trade Agreements," OECD Trade Policy Papers 36, OECD Publishing.
    13. Lauge N. Skovgaard Poulsen & Emma Aisbett, 2011. "When the Claim Hits: Bilateral Investment Treaties and Bounded Rational Learning," Crawford School Research Papers 1105, Crawford School of Public Policy, The Australian National University.
    14. Caroline Henckels, 2016. "Protecting Regulatory Autonomy through Greater Precision in Investment Treaties: The TPP, CETA, and TTIP," Journal of International Economic Law, Oxford University Press, vol. 19(1), pages 27-50.
    15. repec:spr:revint:v:13:y:2018:i:1:d:10.1007_s11558-017-9276-1 is not listed on IDEAS
    16. Staiger, Robert W & Tabellini, Guido, 1987. "Discretionary Trade Policy and Excessive Protection," American Economic Review, American Economic Association, vol. 77(5), pages 823-837, December.
    17. Ashwin Kaja & Eric Werker, 2010. "Corporate Governance at the World Bank and the Dilemma of Global Governance," World Bank Economic Review, World Bank Group, vol. 24(2), pages 171-198, June.
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    More about this item

    Keywords

    International investment; investor-state dispute settlement; interdisciplinary studies; public interest;

    JEL classification:

    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process
    • F21 - International Economics - - International Factor Movements and International Business - - - International Investment; Long-Term Capital Movements
    • F53 - International Economics - - International Relations, National Security, and International Political Economy - - - International Agreements and Observance; International Organizations

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