This chapter analyzes the purposes that American officials ascribe to investor–state arbitration in their investment treaties, using internal documents from all pre-NAFTA American investment treaty negotiations. Officials drafting the initial US model treaty in the late 1970s saw ISDS as a narrow tool to protect investment, but a decade later, it was reimagined as a way to lock in domestic liberalization reforms in former Soviet or Latin American states. Similarly, the American investment treaty program was not intended to facilitate outward investments, but rhetoric has changed: in the early 1990s, additional investment was implied to treaty partners, before and after these years officials noted that treaties and ISDS do not necessarily lead to additional investment. Finally, while access to arbitration became a pillar of American policy, at first investor access to ICSID caused the State Department frustration and endangered US strategic interests.
Politics and the State Department of Justice