This introductory chapter situates the book within existing debates about the effects of investment treaties on national governance. The book’s methodology and conceptual framework in socio-legal and ethnographic approaches to law is described, and the typology of investment treaties’ impact on national governance used in the book explained: ideological-discursive effects and formal-institutional effects. Finally, the structure of the book is outlined.

This chapter centres on the economic and political climate of the period in which the selected countries concluded their first investment treaties. This period coincides with the end of the 1980s and early 1990s, when, as a result of the end of the Cold War, states across the globe adopted trade and investment liberalisation policies, increased property protections, and promoted liberal legal internationalism. It does so through four country snapshots. It then discusses the political debate regarding IIAs at the highest political level – in national parliaments – and in the media. When it comes to the debates in national parliaments, four themes emerged: (1) general lack of substantive parliamentary engagement; (2) belief that foreign investment was sufficiently protected under national laws; (3) substantive engagement on issues related to free transfers; and (4) more pronounced discussion when the investment connected with trade liberalisation, such was the case of Mexico. Regarding the media debate, the period of the conclusion of the first international investment agreements (IIAs) shows an almost total absence of reporting and media engagement.

The chapter focuses on how IIAs have impacted relations in public administrations through institutional rearrangements. First, we analyse how the intervention of IIAs influenced relations between different state agencies at the central level. Here, we look mainly at central state agencies’ struggles over the IIA portfolio and the attendant budgetary repercussions. Second, we look at how the IIAs impact the relations between the central agencies and their counterparts at the levels of individual states, provinces, and municipalities. This part deals with the management of the support for foreign investment projects and issues connected with ISDS management and defence. We highlight the related budgetary politics as well. Regardless of the variations, one element arises from all of the studied states: the gradual side-lining of the traditional actors tasked with international diplomacy in favour of more sectoral expert actors that base their expertise on the considerations of trade, commerce, finance, and the economy. It also became evident that the practices of centralisation, executive rule, and discourses that put a premium on the economic considerations of efficiency and competition have been preferred by the centre to rein in provinces.

The concluding chapter summarises the findings of the book and discusses their import. We highlight the constraining and empowering dynamics of IIAs in national governance and how they may influence the designing of more innovative and emancipatory economic policies, especially given the necessary transition to a green economy. We highlight some of the issues that developing countries, in particular, may want to consider.

In this and the following chapters, we examine how IIAs have featured as an argument in national lawmaking. Our focus has been primarily on the general legislative bodies with the power to issue laws applicable to the whole state, that is, national parliaments. We open the chapter with a discussion on the general parameters of the selected countries’ IIA-compliance review mechanisms in lawmaking. In the second part of the chapter, each state in our case studies is presented through a snapshot of an illustrative use of an IIA argument in lawmaking that is typical of that state’s experience with the IIA regime. As these snapshots are often related to contingent historical events and processes, we do not suggest that these uses are somehow essential to that state. Instead, they significantly overshadow the other instances of using an IIA argument in lawmaking in that state.

This chapter focuses on how different governance actors stress the constraining function of IIAs to achieve various goals and how they justify their actions. This chapter looks at how the IIA narratives have been used in reshaping national governance. This was chiefly through the narrative of IIAs as a disciplining and constraining force. We have identified that the general disciplining narrative about IIAs has three variants with different normative bents. These sub-types express how the governance actors evaluate the constraining potential of IIAs. On the one end of the spectrum, this disciplining effect may be viewed as flatly undesirable; on the other end, the constraint is viewed through a largely positive lens as a cultivating and educating force. Somewhat between sits the view of IIAs as simply something one must learn to live and deal with. Generally, the disciplining narratives about IIAs view IIAs as an incarnation of legal rationality superior to other rationalities, such as political or democratic rationality. Other considerations, even those pertaining to national constitutional arrangements, were cast in an inferior position and viewed as obstacles to a smooth implementation of IIAs.

In this chapter, the most common narratives relating to the function and purpose of investment treaties are analysed that emerged from our data. The overarching discursive framework of the narratives about IIAs’ purpose was marked by the faith in their important role in economic development of the studied countries (IIAs as articles of faith). This broader view was undergirded by the idea of a linear and progressive march of history, in which earlier state and economic formations are eventually transformed into the universally superior social order of capitalist legality, rule of law, and good governance (IIAs as progressive economic development). This broader progressive narrative about IIAs was translated in more specific narratives about IIAs in specific temporal and spatial contexts. International investment agreements were, thus, viewed either as a natural necessity, as a necessary (lesser) evil in the march towards economic progress, or simply as benign instruments that merely reflect the progress already undertaken. Finally, IIAs were also signed to express cultural affinity and played a symbolic role in showing political like-mindedness (IIAs as symbolic tokens of political affinity). In some cases, IIAs helped to project countries’ self-perception of their position in the stylised international relation hierarchy as ‘developed states’.

This chapter analyses the policies and practices related to resolving investor–state disputes through ISDS. In this area, three broad themes emerged from our data. First, there are practices of forming the defence strategy for specific investment arbitrations and handling ISDS proceedings. The main issue is whether to engage lawyers from private practice and, if so, to what extent. Second, we discuss the matter of coordination and communication between various governance actors during ISDS proceedings. The third issue is that of dispute prevention. Given the stakes, risks, and challenges resulting from ISDS disputes, many governance actors dealing with IIAs realise that dispute prevention is crucial in internalising the IIA disciplines. This section focuses on various training and educative programmes for bureaucrats that were designed, proposed, or implemented to increase the knowledge about and awareness of IIAs within the broad sphere of national governance. We end with a discussion on the blurring of the public–private divide through the engagement of private expertise in the service of the public when defending ISDS cases.

In this second chapter dealing with the IIAs’ impact on lawmaking, we analyse and categorise other identified instances in which an IIA argument was used in the lawmaking processes. Here, we discuss invocations of IIA arguments in the lawmaking that appeared in a similar shape or form across the studied countries. We also documented cases that, while politically less significant, demonstrate curious intersections between IIAs and national lawmaking. First, we centre on four specific subject-matter areas in which the IIA argument has featured. Those relate to potentially discriminatory regulations, transparency of the public administration, fundamental rights, and expropriation and nationalisation measures. Then, we close with a section highlighting a miscellany of somewhat unexpected uses of the IIA argument. We bring attention to the attempts at influencing IIA obligations through national legislation, ambiguous examples of regulatory chill, and instances of vague and complementary uses of IIA arguments in lawmaking. The chapter presents general conclusions and broader insights on the IIAs’ impact on lawmaking, especially regarding the regulatory chill and positive spill-over theses.