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Vol 25 No 2 Feb/March 2020

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The Impact of Investment Treaty Law on Host States: Enabling Good Governance?


ISBN13: 9781509939565
To be Published: June 2020
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback (Hardback in 2018)
Price: £30.00



This book examines the role of international investment treaties in fostering good governance and rule of law on a national plane. Although they were historically designed to protect foreign undertakings from opportunistic governmental behaviour, international investment treaties have gradually come to be interpreted as also requiring host States to maintain good governance standards in their dealings with foreign investors. Lack of transparency, stability, predictability as well as the lack of effective remedies and enforcement mechanisms at a national level can now lead to a host State’s liability in damages.

The book questions whether investment treaty norms can induce governments into compliance with the rule of law and good governance standards. To what extent and how do investment treaty norms influence government decision-making in host states? How do host States respond to investment treaty remedies? The book offers a novel socio-legal and interdisciplinary analysis of the impact of international investment law on governmental conduct. The capacity of the investment treaty regime to foster the rule of law and governance reforms in host States is also examined from a comparative perspective, with focus on the rule of law and regulatory compliance initiatives undertaken by the World Bank and the European Union.

Subjects:
International Investment Law
Contents:
1. Introduction
I. International Investment Law: From Good Governance for Foreign Investors to Good Governance for All
II. Conceptual Framework
III. Outline of Chapters
2. Genesis of ‘Good Governance’ Narratives in International Investment Law and Scholarship: An Historical and Doctrinal Analysis
I. Conceptual Inspirations behind the Good Governance Narratives of Investment Treaty Law
II. Embodiments of Good Governance Precepts in Investment Treaty Law
III. Competing Visions of Investment Treaty Law and its Good Governance Promise
IV. Conclusion
3. How Do Host States Respond to Investment Treaty Law?
I. The Impact of Investment Treaty Law on Governance in Host States: Key Empirical Questions
II. Methodology
III. Are Government Officials Aware of International Investment Law and its Good Governance Prescriptions?
IV. How Host States ‘Learn’ from Investment Arbitration
V. Negative Internalisation: Over-protection and Withdrawal
VI. Internalising Investment Treaty Prescriptions: Why, at Whose Behest and What Cost?
VII. Conclusion
4. The Role of Remedy Design in Inducing Host States to Comply with Investment Treaty Standards of Good Governance
I. Damages as a Principal Form of Relief for an Investment Treaty Breach
II. Can State Compliance with Good Governance Standards be Fostered through Monetary Sanctions?
III. The Design of Investment Treaty Remedies and State Compliance with Good Governance Standards:
A Functional Analysis
IV. Compliance and Optimal Remedy Design: Punitive, Non-pecuniary, Multi-tiered?
V. Conclusion
5. Investment Treaty Law and its Internal Capacity to Foster Good Governance in Host States
I. Is the Investment Treaty Regime Compliant with Good Governance Standards?
II. Legitimacy and ‘Compliance Pull’: (Insufficient) Transparency and Coherence of Investment Treaty Rules
and Arbitral Jurisprudence
III. Internationalisation of Investment Law and its (Disempowering) Effects on Governance in Host States
IV. Good Governance as a Two-way Street: Dealing with Investor Misconduct in Treaty Practice and Arbitration
V. Conclusion
6. International Investment Law and its Anti-participatory Animus
I. The Investment Treaty Regime and Its Disregard for the Political and Social Interfaces of Development
II. Foreign Investors and the Domestic Political Process
III. Developing Countries and the Making of International Investment Law: Lack of Participation and Inclusivity
IV. Lack of Stakeholder Input in the Making of Investment Treaties in Developed Countries
V. Conclusion
7. Conclusion

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