Beyond ‘Once BITten, Twice Shy’: defending the legitimacy of investor-state dispute settlement in Peru and Australia

Calvert, Julia; Tienhaara, Kyla

doi:10.1080/09692290.2022.2134172

Cited by 12 publications

(1 citation statement)

References 44 publications

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“…35 Poulsen and Aisbett (2013); Thompson et al (2019). 36 Calvert and Tienhaara (2023). 37 Yackee (2012); Poulsen and Aisbett (2016).…”

Section: Preference Formationmentioning

confidence: 99%

Why is there no investor-state dispute settlement in RCEP? bargaining and contestation in the investment regime

Lugg,

Ganeson,

Elsig

et al. 2024

Bus. Polit.

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The Regional Comprehensive Economic Partnership (RCEP) is one of the most important mega-regional trade agreements signed to date. Yet, it failed to include an Investor-State Dispute Settlement (ISDS) mechanism in its investment chapter. What explains this omission? To unpack this, we examine international negotiations as a two-step process. In the first stage, we theorize that initial preferences towards ISDS are based on countries’ orientation toward foreign direct investment (FDI), experience with ISDS, and past treaty practice. Second, we theorize that during protracted negotiations, adverse regime developments and domestic politics can have a profound impact on treaty design. To test our framework, we examine the RCEP negotiations. Our analysis shows that mounting cases as well as the eroding norm of ISDS in other treaties lowered support for ISDS as the negotiations progressed. Then, a change of government in Malaysia shifted that country’s position dramatically, which tipped the balance against ISDS in the final round of negotiations. Our findings have important implications for the international investment regime. They highlight the factors that determine countries’ initial preferences while also demonstrating the importance of developments during the negotiations, which can lead to the abandonment of the institutional status quo.

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“…35 Poulsen and Aisbett (2013); Thompson et al (2019). 36 Calvert and Tienhaara (2023). 37 Yackee (2012); Poulsen and Aisbett (2016).…”

Section: Preference Formationmentioning

confidence: 99%

Why is there no investor-state dispute settlement in RCEP? bargaining and contestation in the investment regime

Lugg,

Ganeson,

Elsig

et al. 2024

Bus. Polit.

View full text Add to dashboard Cite

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Constitutional Review and International Investment Law

Schneiderman

2024

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The revival of interest in comparative constitutional studies, alongside the rise of legal limitations to state action due to investment treaty commitments, calls for a unique analysis of both investment law and comparative constitutional law. The unresolved tensions that arise between the two are only beginning to be addressed by judges. Are courts resisting efforts at diminishing constitutional space as a consequence of new international limits on state capacity? Constitutional Review and International Investment Law: Deference or Defiance? pioneers this discussion by examining how a selection of the highest courts around the world have addressed this potential discord. A comparison of decisions in the US, Europe, Colombia, Indonesia, Israel, and elsewhere reveals that, rather than issuing declarations of constitutional incompatibility, courts are more likely to respond to constitutional tensions indirectly. Their rulings adopt stances that range from hard deference (such as the Peruvian Constitutional Court viewing constitutional law and investment law as entirely compatible) to soft defiance (for example the Colombian Constitutional Court requiring only modest renegotiation of some treaty terms so that they are constitutionally compliant). Readers learn that judges are not aiming to undermine the investment law regime but are seeking to mitigate constitutional collision.

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Schneiderman

2024

Constitutional Review and International Investment Law

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Beyond ‘Once BITten, Twice Shy’: defending the legitimacy of investor-state dispute settlement in Peru and Australia

Cited by 12 publications

References 44 publications

Why is there no investor-state dispute settlement in RCEP? bargaining and contestation in the investment regime

Why is there no investor-state dispute settlement in RCEP? bargaining and contestation in the investment regime

Constitutional Review and International Investment Law

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