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The Global Laboratory of Investment Law Reform Alternatives

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There are two ways of thinking about institutional choice in the context of multilateral investment law reform. One starts from abstract principles, asking what policy goal investment law is supposed to achieve and what institutional choice most effectively advances that goal. The other draws on practical experimentation, asking what institutional choices states are making and how these choices perform in real life. Sergio Puig and Gregory Shaffer present a compelling analytical framework for the former, top-down approach to investment law reform. In this essay, I will scrutinize their analysis and argue that the latter, bottom-up approach is more promising.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Sergio Puig & Gregory Shaffer, Imperfect Alternatives: Institutional Choice and Investment Law Reform, 112 AJIL 361 (2018).

2 On the idea of institutional complementarity in international treaty regimes, see for instance Joost Pauwelyn, The Transformation of World Trade, 104 Mich. L. Rev. 1 (2005); J.H.H. Weiler, The Transformation of Europe, 100 Yale L.J. 82 (1991).

3 There is a rich literature on the different policy instruments that can induce compliance. See, e.g., Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995).

4 Once one compares combinations of institutions rather than individual institutions the number of institutional alternatives to be considered increases exponentially.

5 Puig & Shaffer, supra note 1, at 369.

6 See Jonathan Bonnitcha et al., The Political Economy of the Investment Treaty Regime (2017).

9 Wolfgang Alschner & Dmitriy Skougarevskiy, Mapping the Universe of International Investment Agreements, 19 J. Int'l Econ. L. 561 (2016); Todd Allee & Clint Peinhardt, Evaluating Three Explanations for the Design of Bilateral Investment Treaties, 66 World Pol. 47 (2014).

10 Wolfgang Alschner, Locked in Language: Historical Sociology and the Path Dependency of Investment Treaty Design, in Research Handbook on the Sociology of International Law (Moshe Hirsch & Andrew Lang eds., forthcoming 2018).

11 Rudolf Dolzer & Yun-I Kim, Commentary on Germany's Model BIT (2009), in Commentaries on Selected Model Investment Treaties (Chester Brown & Devashish Krishan eds., 2013).

12 Alschner and Skougarevskiy, supra note 9, at 576.

14 2016 Slovakia Model BIT (on file with the author); Agreement on Reciprocal Promotion and Protection of Investments Between and the Kingdom of the Netherlands (2018). For background on the Slovakian model, see Statement of Slovakia, UNCTAD Expert Meeting on Taking Stock of IIA Reform (Mar. 16, 2016).

16 See, e.g., Tarcisio Gazzini, Nigeria and Morocco Move Towards a “New Generation” of Bilateral Investment Treaties, EJIL: Talk! (May 8, 2017).

17 See, e.g., United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (2015), as adopted by GA Res. 69/116 (Dec. 10, 2014).

18 UN Conference on Trade & Dev., IIA Mapping Project.

19 Formally, the value is calculated by averaging the Jaccard distances of the feature spaces of all BITs concluded in a given year.

20 UN Comm'n on Int'l Trade Law, Working Group III (Investor-State Dispute Settlement Reform), Annotated Provisional Agenda, UN Doc. A/CN.9/WG.III/WP.141, para. 10 (Sept. 15, 2017).

22 Puig and Shaffer, supra note 1; Roberts, supra note 21.

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  • EISSN: 2398-7723
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