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The Rise of Investor-State Arbitration: Politics, Law, and Unintended Consequences

The Rise of Investor-State Arbitration: Politics, Law, and Unintended Consequences

Author: Taylor John
Publisher: Oxford University Press
ISBN: 9780198789918
Published In: March 2018
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Description
Contents

Details

Today, investor-state arbitration embodies the worst fears of those concerned about runaway globalization - a far cry from its framers' intentions. Why did governments create a special legal system in which foreign investors can bring cases directly against states? This book takes readers through the key decisions that created investor-state arbitration, drawing on internal documents from several governments and extensive interviews to illustrate the politics behind this new legal system.

The corporations and law firms that dominate investor-state arbitration today were not present at its creation. In fact, there was almost no lobbying from investors. Nor did powerful states have a strong preference for it. Nor was it created because there was evidence that it facilitates investment - there was no such evidence.

International officials with peacebuilding and development aims drove the rise of investor-state arbitration. This book puts forward a new historical institutionalist explanation to illuminate how the actions of these officials kicked off a process of gradual institutional development. While these officials anticipated many developments, including an enormous caseload from investment treaties, over time this institutional framework they created has been put to new purposes by different actors. Institutions do not determine the purposes to which they may be put, and this book's analysis illustrates how unintended consequences emerge and why institutions persist regardless.

Introduction
1: International Officials and the Rise of ISDS: A Historical Institutionalist Account

Part I. Creating the Convention
2: Gunboats and Diplomacy: Antecedents of the ICSID Convention
3: Intergovernmental Bargaining: 'The Lowest Common Denominator Was Not Yet Low Enough'
4: Supranational Agenda-Setting: The World Bank's 'Modest Proposal'
5: Intergovernmental Deliberation and Ratification of ICSID

Part II. Eliciting State Consent
6: Layering: How Investor-State Arbitration Was Added to Investment Treaties
7: Conversion: America Embraces Investor-State Arbitration
8: Why is Exit So Hard? Positive Feedback and Institutional Persistence

Conclusion