The Limits of Comparative Institutional Analysis

112 AJIL Unbound 255 (2018)

6 Pages Posted: 19 Apr 2019 Last revised: 15 Apr 2020

Date Written: September 24, 2018

Abstract

Atul Gawande’s Checklist Manifesto became a sensation in 2009 because it promised that a simple technique could powerfully discipline decision-making. Gawande had saved lives using hospital checklists, and he argued that checklists could improve outcomes in other complicated endeavors. Checklists, he explained, “provide a kind of cognitive net. They catch mental flaws.” Neil Komesar’s method of comparative institutional analysis is by necessity messier than the checklist and does not claim to produce faultless policy-making. But Komesar similarly seeks to improve cognitive processing by imposing a disciplining framework on decision-making. Sergio Puig and Gregory Shaffer’s effort to introduce Komesar’s technique to the debate about foreign investment law reform is welcome. Their emphasis on tradeoffs among institutional alternatives helps us to appreciate the different contexts facing different nation states, the value of regime competition, and consequently, the importance of implementing reforms in ways that preserve a variety of options for states. If they persuade commentators and policy-makers to take stock of the tradeoffs among institutional alternatives, Puig and Shaffer will have made a meaningful contribution. Still, their analysis illustrates some of the weaknesses of comparative institutional analysis. In this essay, I identify those weaknesses and suggest that they also weigh in pluralism’s favor.

Keywords: ISDS, investor-state arbitration, bilateral investment treaties, international arbitration, ICSID, UNCITRAL, international investment law

Suggested Citation

Blanchard, Sadie, The Limits of Comparative Institutional Analysis (September 24, 2018). 112 AJIL Unbound 255 (2018), Available at SSRN: https://ssrn.com/abstract=3363908

Sadie Blanchard (Contact Author)

Notre Dame Law School ( email )

Notre Dame, IN 46556-0780
United States

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