Withdrawing from Investment Treaties but Protecting Investment

Peinhardt, Clint; Wellhausen, Rachel L.

doi:10.1111/1758-5899.12355

Cited by 52 publications

(30 citation statements)

References 23 publications

(18 reference statements)

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“…In this view, then, countries that limit judicial independence domestically should incur the highest cost in terms of reduced foreign investments if they also seek to exit the investment arbitration regime. Yet the examples presented here suggest that both left-wing and right-wing populist governments have nonetheless been willing to proceed on both tracks, even if exiting ICSID or canceling BITs do not automatically exempt a country from ISDS (Peinhardt and Wellhausen 2016).…”

Section: Property Rightsmentioning

confidence: 86%

“…For example, Venezuela pulled out of the IACtHR, Rwanda withdrew its declaration granting its citizens access to the African Court on Human and Peoples' Rights (ACHPR), and Burundi has left the ICC. Bolivia, Ecuador, Indonesia, Poland, South Africa, and Venezuela have sought to withdraw themselves from investment arbitration where possible (Peinhardt and Wellhausen 2016). I also include instances where governments have made explicit and credible threats to exit even if they haven't (yet) followed through.…”

Section: What Are Backlashes Against International Courts?mentioning

confidence: 99%

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Populism and Backlashes against International Courts

Voeten¹

2019

Perspect. polit.

103

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International courts, like domestic courts, protect liberal limits on majoritarianism. This sometimes puts these courts in a position to protect the property rights of the "corrupt elites" that are targeted by populists or the civil liberties of those who are targeted in domestic populist identity politics. Moreover, populism offers an ideology to attack the authority of a court rather than just its individual rulings. An empirical examination illustrates the plausibility of this argument. A large number of backlashes against international courts arise from judgments that reinforce local populist mobilization narratives. Populist backlashes against international courts are not just about sovereignty but often follow efforts to curb domestic courts, usually for similar reasons. Yet populist backlashes do not always succeed, either because populist leaders do not follow up on their exit threats or because populism is too thin an ideology for creating successful multilateral reform coalitions.

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Section: Property Rightsmentioning

confidence: 86%

Section: What Are Backlashes Against International Courts?mentioning

confidence: 99%

Populism and Backlashes against International Courts

Voeten¹

2019

Perspect. polit.

103

View full text Add to dashboard Cite

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“…Meanwhile, dejudicialization may occur alongside rejudicialization. For example, several developing countries have recently withdrawn from treaties that allow foreign corporations to seek international arbitration to challenge domestic policies as violating international investment law (Peinhardt and Wellhausen 2016). But this trend has also contributed to new judicialization proposals, including the European Union's push to create a Multilateral Investment Court (Council of the European Union 2018) 20 and China's Belt and Road Initiative to create new judicial mechanisms for adjudicating commercial disputes relating to Chinese investments (Hillman and Goodman 2018;Cohen 2018).…”

Section: When Judicialized Politics Mattermentioning

confidence: 99%

Theorizing the Judicialization of International Relations

Alter

Hafner-Burton²,

Helfer

2018

SSRN Journal

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This article introduces a Thematic Section and theorizes the multiple ways that judicializing international relations shifts power away from national executives and legislatures toward litigants, judges, arbitrators, and other nonstate decision-makers. We identify two preconditions for judicialization to occur-(1) delegation to an adjudicatory body charged with applying designated legal rules, and (2) legal rights-claiming by actors who bring-or threaten to bring-a complaint to one or more of these bodies. We classify the adjudicatory bodies that do and do not contribute to judicializing international relations, including but not limited to international courts. We then explain how rights-claiming initiates a process for authoritatively determining past violations of the law, identifying remedies for those violations, and preventing future violations. Because judicializing international relations occurs in multiple phases, in multiple locations, and involves multiple actors as decisionmakers, governments often do not control the timing, nature, or extent to which political and policy decisions are adjudicated. Delegation-and the associated choice of institutional design features-is thus only the first step in a chain of processes that determine how a diverse array of nonstate actors influence politically consequential decisions.

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“…In this view, international investment arbitration is not at the root of all the criticisms highlighted in the literature. Moreover, researchers remain in some doubt about whether radical exit solutions are achieving their objectives at the national level (Peinhardt and Wellhausen 2016).…”

mentioning

confidence: 99%

“…Third, given the redundancy in investment agreements, multinational firms may structure their investments through countries that have favorable treaties with the host state (e.g. ones provide investors the right to bring investment disputes before ICSID) to bypass the unfavorable treaty (Peinhardt and Wellhausen 2016). Finally, a significant number of BITs include sunset clauses which extend treaty protection beyond its unilateral termination date (e.g.…”

mentioning

confidence: 99%

Reasons not to exit? A survey of the effectiveness and spillover effects of international investment arbitration

2019

Eur J Law Econ

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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.

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Withdrawing from Investment Treaties but Protecting Investment

Cited by 52 publications

References 23 publications

Populism and Backlashes against International Courts

Populism and Backlashes against International Courts

Theorizing the Judicialization of International Relations

Reasons not to exit? A survey of the effectiveness and spillover effects of international investment arbitration

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