Domestic Investment Statutes In International Law

Hepburn, Jarrod

doi:10.1017/ajil.2018.85

Cited by 5 publications

(5 citation statements)

References 18 publications

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“…With one exception (Poulsen, 2015), existing research on domestic investment laws is limited to policy reviews of state practices (UNCTAD, 2016;Bonnitcha, 2017) and legal analysis (Parra, 1997;Caron, 2010;Potestà, 2011;Hepburn, 2018). Yet many of the arguments advanced to explain why governments sign investment treaties with arbitration clauses may be relevant for why governments enact domestic investment laws with the same arbitration provisions.…”

Section: Alternative Explanationsmentioning

confidence: 99%

Asymmetric diffusion: World Bank ‘best practice’ and the spread of arbitration in national investment laws

Berge

John

2020

Review of International Political Economy

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Globally, 74 countries have domestic investment laws that mention investor-state arbitration and 42 of these laws provide consent to it. That is, they give foreign investors the right to bypass national courts and bring claims directly to arbitration. What explains this variation, and why do any governments include investor-state arbitration in domestic legislation? We argue that governments incorporate arbitration into their domestic laws because doing so was labelled 'international best practice' by specialist units at the World Bank. We introduce the concept of asymmetric diffusion, which occurs when a policy is framed as international best practice but only recommended to a subset of states. No developed state consents to arbitration in their domestic law, nor does the World Bank recommend that they do so. Yet we show that governments who receive technical assistance from the World Bank's Foreign Investment Advisory Service are more likely to include arbitration in their laws. We first use event history analysis and find that receiving World Bank technical assistance is an exceptionally strong predictor of domestic investment laws with arbitration. Then we illustrate our argument with a case study of the Kyrgyz Republic's 2003 law.

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Section: Alternative Explanationsmentioning

confidence: 99%

Asymmetric diffusion: World Bank ‘best practice’ and the spread of arbitration in national investment laws

Berge

John

2020

Review of International Political Economy

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“…Instead, such claims possess a separate and distinct nature, raising unique questions of general international lawparticularly the law of state responsibility and unilateral acts. 57 Over the last few decades, there has also been an increase in domestic investment law-based international arbitration claims. 58 Thus, recent studies have focussed on international arbitration resulting from domestic lawwith a focus on issues such as consent to ICSID arbitration in domestic investment laws, 59 and the risk of arbitration in accordance with domestic laws.…”

Section: International Economic Law: Towards Domesticationmentioning

confidence: 99%

Domestic Investment Laws and International Economic Law in the Liberal International Order

Chaisse

Dimitropoulos

2023

World Trade Review

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International Economic Law (IEL) has largely regulated cross-border trade and investment in the post-WWII world. IEL has become an important part of the Liberal International Order that prescribes a set of rule-based relationships for international cooperation based on political liberalism, economic liberalism, and liberal internationalism. However, economic globalization has witnessed a relative decline, especially after the 2008 global financial crisis and the COVID-19 pandemic. This form of ‘de-globalization’ challenges the assumptions upon which modern IEL is premised. This introductory article to the special issue on ‘Domestic Investment Laws and International Economic Law in the Liberal International Order’ explains how domestic law has started playing an increasingly important role in regulating foreign investment. Often overlooked instruments such as Domestic Investment Laws, Investment Screening Mechanisms, and Investment Promotion Agencies are now important tools in promoting or restricting foreign investment flows. Expanding on this premise, the article examines the transition from international to domestic in the Liberal International Order with a focus on Domestic Investment Laws. The move to domestic law does not signal a new era of economic isolation for States. Instead, it presents an effort to achieve similar ends of attracting foreign investors using different means while exercising more control over foreign investment.

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“…IIAs are reciprocal between state parties, but they impose no obligations on foreign investors. Two less studied investment law instruments are domestic investment laws (Hepburn 2018), and investor-state contracts (Alvik 2011). Unlike IIAs, investment law protections are not reciprocal.…”

Section: The Institutions Of the Investment Treaty Regimementioning

confidence: 99%

“…With one exception (Poulsen 2015), existing research on domestic investment laws is limited to policy reviews of state practices (Bonnitcha 2017; UNCTAD 2016) and legal analysis (Caron 2010;Hepburn 2018;Parra 1997;Potestà 2011). Yet many of the arguments advanced to explain why governments sign investment treaties with arbitration clauses may be relevant for why governments enact domestic investment laws with the same arbitration provisions.…”

Section: Iii24 Alternative Explanationsmentioning

confidence: 99%

Do Investor–State Dispute Settlement Cases Influence Domestic Environmental Regulation? the Role of Respondent State Capacity

Berge

Berger

2020

SSRN Journal

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Domestic Investment Statutes In International Law

Cited by 5 publications

References 18 publications

Asymmetric diffusion: World Bank ‘best practice’ and the spread of arbitration in national investment laws

Asymmetric diffusion: World Bank ‘best practice’ and the spread of arbitration in national investment laws

Domestic Investment Laws and International Economic Law in the Liberal International Order

Do Investor–State Dispute Settlement Cases Influence Domestic Environmental Regulation? the Role of Respondent State Capacity

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