Download this Paper Open PDF in Browser

Legitimation Through Renegotiation: Do States Seek More Regulatory Space in Their BITs?

Forthcoming in Daniel Behn and Ole Kristian Fauchald, Empirical Perspectives on the Legitimacy of Investment Treaty Arbitration (2017).

Hebrew University of Jerusalem Legal Research Paper 17-1

Hebrew University of Jerusalem International Law Forum Working Series 06-16

35 Pages Posted: 30 Sep 2016 Last revised: 2 Jan 2017

Tomer Broude

Hebrew University of Jerusalem - International Law Forum

Yoram Z. Haftel

Hebrew University of Jerusalem

Alexander Thompson

Ohio State University

Date Written: September 29, 2016

Abstract

Criticism of the effects of the international investment regime on state regulatory space (SRS) is on the rise, much of it focusing on the impact of binding arbitration. Specifically, the investor-state dispute settlement (ISDS) provisions found in most bilateral investment treaties (BITs) and other investment agreements have a profound effect on the balance between investor rights and state regulatory space (SRS), raising a debate on their legitimacy.

We explore how states perceive the legitimacy of ISDS provisions in light of their experiences with the investment regime through the lens of BIT renegotiation and termination. Renegotiation provides an empirical window for understanding how dissatisfaction with BITs translates into concrete decisions by governments to recalibrate their treaty obligations, perhaps rendering them more legitimate.

Based on an original data set comprised of 161 renegotiated agreements, we find that states have not made a systematic effort over the years to recalibrate their BITs for the purpose of preserving more regulatory space. In fact, most renegotiations either leave ISDS provisions unchanged or render them more investor-friendly. However, recent renegotiations show a greater tendency to limit investor protections in ISDS provisions.

Keywords: Regulatory Space, Legitimacy, Investment, ISDS, BITs, textual analysis

Suggested Citation

Broude, Tomer and Haftel, Yoram Z. and Thompson, Alexander, Legitimation Through Renegotiation: Do States Seek More Regulatory Space in Their BITs? (September 29, 2016). Forthcoming in Daniel Behn and Ole Kristian Fauchald, Empirical Perspectives on the Legitimacy of Investment Treaty Arbitration (2017).; Hebrew University of Jerusalem Legal Research Paper 17-1; Hebrew University of Jerusalem International Law Forum Working Series 06-16 . Available at SSRN: https://ssrn.com/abstract=2845297

Tomer Broude (Contact Author)

Hebrew University of Jerusalem - International Law Forum ( email )

Mount Scopus, 91905
Israel

Yoram Z. Haftel

Hebrew University of Jerusalem ( email )

Mount Scopus
Jerusalem, IL 91905
Israel

Alexander Thompson

Ohio State University ( email )

Department of Political Science
2140 Derby Hall, 154 North Oval Mall
Columbus, OH 43210-1373
United States
614-292-9491 (Phone)

Paper statistics

Downloads
136
Rank
179,646
Abstract Views
555