Judge Knot: Politics and Development in International Investment Law

Description

‘Judge Knot’ explores the biggest and the most controversial success story in international law: investor-state dispute settlement, or ISDS. Since 1990, investors have launched hundreds of claims against government regulation. This exclusive inside look explains what makes the system tick: its poorly understood centuries-old origins, why corporations demand investment law solutions to political problems, how arbitrators supply these solutions, and why the system lasts despite the many politicians and citizens unhappy with it. Building off of an unprecedented set of interviews with the arbitrators who actually decide the cases, ‘Judge Knot’ brings together the best of political science, law and development economics scholarship and offers a concrete alternative to ISDS that leverages what works about the system and discards what does not, so that international law can be more supportive of democracy and development goals. Cover Front Matter Half-title Series information Title page Copyright information Dedication Table of contents List of illustrations Acknowledgments Chapter Int-6 Introduction References Chapter One Entering the Judge Knot All Tangled Up From Jobs to Judges Global Institutions Meet Democracy Outline of Remaining Chapters References Chapter Two Historicizing Investment Law Strengths and Weaknesses of International Relations Paradigms Realism: Power Talks, Law Walks Rational-Choice Institutionalism: Rules That Bind Sociological Institutionalism: Doing What Is Right Historical Institutionalism: Taking Temporality Seriously Judicialization of Investment Law: A Historical Institutionalist Account Critical Juncture: Challenge to Sovereign Immunity in the Peripheries and Proto-ISDS Reactive Sequence: The Rights of Business After Social Upheavals Incrementalism and Obfuscation: Congress as Frog in Boiling Water Summing Up References Chapter Three Why Investors Demand Investment Law Investor–State Dispute Settlement: The Mixed Empirical Track Record What Do We Know about the Role of the State in Development? New Institutional Economics and Theories of State Development The Institutionalist Political Economy Alternative Role Reversal on Courts Attractive Inputs: Arbitral Development Ideologies What Types of State Behavior Are Investment Treaties Meant to Constrain? How Should Policy Change? What Role Do Treaties Play in National Development? How Much Sensitivity Should Arbitrators Show States? Attractive Outputs: Ideology in Arbitral Decisions “Best” Case: Damages for Political Change “Worst” Case: Damages Only for Changes Unfavorable to Foreigners “Best” (and “Worst”) Case: All (or Only Part) of Tribunals Agree That Regulations’ Impacts... “Best” (and “Worst”) Case: Foreigners Can Override Treaty Commitments of Their Home... Truly Worst Case: Unusable Protections Summing Up References Chapter Four Why Arbitrators Supply Investment Law How Arbitrators Are Appointed Arbitrator Types Chairman Types Wingman Types Types in Interaction Tribunal Types and Implications for States Summing Up References Chapter Five Why Investment Law Lasts Exploiting Imprecision The Law Appliers The Law Creators Benefiting from Complex Delegation Screening Monitoring Sanctions Institutional Checks and Balances How Viable Is Voice or Exit? Summing Up References Chapter Six Toward Global Popular Constitutionalism Law in Democracy: From Popular Constitutionalism to Judicial Supremacy in the United States Three Tales of Judicialization Labor: From More Judicialization to Less, and Back Again Trade: From No to Lots of Judicialization Tax: Selective Judicialization Reforming Investment Law: Can Knotty Be Nice? Global Popular Constitutionalism: A Roadmap Complementary Policies Addressing Objections Signing Off References End Matter Appendix: Methodology How Do Social Scientists Study Adjudicators? My Method Index