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The Limitations of Comparative Institutional Analysis

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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.

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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 Atul Gawande, The Checklist Manifesto: How To Get Things Right (2009).

2 See Neil Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy (1994).

3 See Sergio Puig & Gregory Shaffer, Imperfect Alternatives: Institutional Choice and the Reform of Investment Law, 112 AJIL 361 (2018).

4 Preserving the options available to states should be a central consideration in assessing reform proposals. See Charles N. Brower & Sadie Blanchard, What's In a Meme? The Truth About Investor-State Arbitration: Why It Need Not, and Must Not, Be Repossessed by States, 52 Colum. J. Transnat'l L. 689, 759–76 (2014).

6 See Komesar, supra note 2, at 56.

7 Puig & Shaffer, supra note 3, at 380.

8 Id.

9 See generally Aseem Prakash & Mary Kay Gugerty, Advocacy Organizations and Collective Action (2010) (describing the incentives of advocacy organizations and how they relate to collective action dynamics).

10 Puig and Shaffer, supra note 3, at 380.

11 See id. at 396.

12 The UN Conference on Trade and Development has published a review of a number of these studies. See UN Conference on Trade & Dev., The Impact of International Investment Agreements on Foreign Direct Investment: An Overview of Empirical Studies 1998–2004 (IIA Issues Note, Sept. 2014). See also The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties, and Investment Flows (Karl P. Sauvant & Lisa E. Sachs eds., 2009).

13 See, e.g., Lise Johnson et al., Costs and Benefits of Investment Treaties: Practical Considerations for States 5-7 (Mar. 5, 2018).

14 See, e.g., id. at 14; James Suroweicki, Trade Agreement Troubles, The New Yorker (June 22, 2015). For competing research findings on regulatory chill, compare Christine Côté, A Chilling Effect? The Impact of International Investment Agreements on National Regulatory Autonomy in the Areas of Health, Safety and the Environment (2014) (unpublished PhD dissertation, London School of Economics Dissertation 2014) (finding no evidence of regulatory chill), with Gus Van Harten & Dayna Nadine Scott, Investment Treaties and the Internal Vetting of Regulatory Proposals: A Case Study from Canada, 7 J. Int'l Disp. Settlement 92 (2016) (concluding that investor-state arbitration leads to regulatory chill). Recent scholarship calls attention to the need for more empirical research on the relationship between international investment protection and regulatory action. See, e.g., Jonathan Bonnitcha et al., The Political Economy of the Investment Treaty Regime 6–10 (2017).

15 Puig & Shaffer, supra note 3, at 384.

16 Id. at 380.

19 See Brower & Blanchard, supra note 4, at 777.

20 See Gus Van Harten, Investment Treaty Arbitration and Public Law 128–32 (2007); Anthea Roberts, Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States, 104 AJIL 179, 210–17 (2010). See Brower & Blanchard, supra note 4, at 768–73 for a fuller discussion of the concerns raised here.

21 See Brower & Blanchard, supra note 4, at 770–75 (critiquing the idea of self-judging clauses).

22 See August Reinisch, Will the EU's Proposal Concerning an Investment Court System for CETA and TTIP Lead to Enforceable Awards? The Limits of Modifying the ICSID Convention and the Nature of Investment Arbitration, 19 J. Int'l Econ. L. 761 (2016) (discussing how the court-like dispute resolution mechanism provided for in the Canada-European Union Trade Agreement interacts with the ICSID Convention).

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