Conceptual Difficulties in the Empirical Study of Bilateral Investment Treaties

Abstract:     
Bilateral investment treaties (BITs) have emerged as one of the most visible aspects of the legalization of host state-foreign investor relations. They have unsurprisingly attracted the attention of empirical researchers, who attempt to explain the treaties' causes and consequences. I argue that extant studies typically ignore two important conceptual difficulties that render the studies' conclusions suspect. First, analysts routinely fail to appropriately define the relevant universe of treaties, automatically relying on a theoretically flawed United Nations compilation that ignores important differences in the procedural content of the treaties. I present an empirical examination of the investor-state dispute settlement provisions of nearly 1000 BITs that demonstrates significant variation in the extent to which the treaties might meaningfully serve to credibly commit host states to treat investors favorably. Second, analysts fail to consider whether alternative policy instruments might serve as reasonably effective substitutes for BITs. I argue that BITs are hardly the inevitable solution to the supposedly insoluble problem of the "obsolescing bargain" that they are frequently held out to be.

Keywords: BITs bilateral investment treaties, FDI foreign direct investment

Accepted Paper Series