Efficient Contracting Between Foreign Investors and Host States: Evidence from Stabilization Clauses

53 Pages Posted: 3 Apr 2011

See all articles by Sam Halabi

Sam Halabi

University of Missouri School of Law

Date Written: March 30, 2011

Abstract

Bilateral investment treaties are agreements between sovereign states that give broad protections to investors and investments made within the jurisdiction of the other state. The prevailing view in the academy and practice is that developing countries sign bilateral investment treaties in order to reassure investors from developed states that their investments will be safe from changes in domestic law. Without these “credible commitments,” investors would be deterred from making investments, depriving developing countries of foreign capital. This Article disputes that view by demonstrating that foreign investors and host states effectively contract around the risk of changes in the law. This Article applies transaction cost economic theory to the most comprehensive empirical study of stabilization clauses (provisions intended to manage post-investment changes in domestic law) recently conducted under the auspices of the World Bank’s International Finance Corporation. The analysis shows that investors and states demonstrate principles of efficient contracting even without the protections of bilateral investment treaties (BIT). This finding adds to current research focusing on the “credible commitment” story. The Article concludes that (1) BITs can be explained as instruments developed and developing states use in their competition for markets and capital and (2) differences in the reasons states execute BITs raise significant doubts about conclusions drawn based on aggregate phenomena.

Keywords: bilateral investment treaties, private international law

Suggested Citation

Halabi, Sam, Efficient Contracting Between Foreign Investors and Host States: Evidence from Stabilization Clauses (March 30, 2011). Northwestern Journal of International Law & Business, Vol. 31, p. 261, 2011. Available at SSRN: https://ssrn.com/abstract=1799556

Sam Halabi (Contact Author)

University of Missouri School of Law ( email )

332 Cornell Hall
Columbia, MO Columbia 65211
United States

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