The international investor rights regime
Freeman, Nathan Wayne
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This dissertation examines the relationship between international investment-related legal commitments, embodied in bilateral investment treaties (BITs), and national regulatory regimes governing foreign direct investment (FDI). I argue that the relationship between international commitments and national regimes is complementary, as evidenced by the timing and sequencing of domestic reforms and international commitments, and by the pattern of investor-state arbitral disputes. Governments seeking to promote FDI tend to undertake liberal reforms domestically before making international commitments. These domestic policy changes are subsequently or simultaneously locked-in through BITs, thereby enhancing the credibility of such reforms by tying the hands of future governments. In addition, the timing of commitments suggests that countries which possess weak institutions for the protection and enforcement of property rights tend to avoid entering into BITs because of concerns about compliance. As a result, the types of countries that are most likely to enter into BITs are precisely those whose domestic policies and institutions are most favorable to FDI, and for whom the costs of complying with BITs are much lower, suggesting that the decision to commit is endogenous to expectations about a state’s capacity to comply with such commitments. An analysis of BIT signings provides evidence in support of my argument, suggesting that a state’s likelihood of entering into a BIT increases as its domestic regime becomes more favorable to FDI. An analysis of the determinants of investor-state arbitral disputes suggests that countries with greater institutional capacity for protecting and enforcing property rights experience fewer disputes than countries with relatively low institutional capacity, suggesting that the quality and strength of a country’s domestic institutions significantly affects its ability to comply with its BIT-related obligations. These findings support the proposition that international commitments are largely a function of state preferences and expectations about the capacity for compliance. They also highlight the importance of a country’s institutional capacity as a determinate of BIT-related compliance costs, revealing an unappreciated paradox. While BITs are putatively intended to substitute for weak domestic institutions, it is precisely those countries with weak institutions for which the costs of compliance are likely to be the highest.