Foreign investment in the WTO

This article explores the application of the policy science concepts of ‘policy frames’ and ‘policy transfer’ as explanatory tools in the study of law and legal reform. It does so by examining the transformation in international law of foreign investment issues from a state-centred classical international law frame, within which foreign investment appeared as a property issue and protection of property as the central objective of law, to a market-centred neo-liberal frame, under which foreign investment is regarded as a ‘trade’ issue and growth-oriented liberalization of trade the central objective of law. This transformation can be summarised very crudely as the replacement of a discourse in which states have rights and multinationals have duties, by one in which states have duties and multinationals have rights. However, this transformation is neither complete, nor uncontroversial. This article considers recent efforts to launch negotiations for a multilateral agreement on investment within the WTO from this ‘framing’ perspective and concludes that framing analysis may have useful applications in the study of law.

Operation Monkey Wrench: Toward a Populist Policy Process?

The policy process literature focuses on technocratic insiders, while scholarship on populism hones in on demagogic outsiders. The latter’s distrust of elites, compromise, and nuance makes them potentially effective in opposition or government, but less obviously as intervenors in policy formation between elections. We argue that, under certain conditions, populists can effectively insert themselves into policy processes without seizing power or even reducing the basic polarity they believe exists between “the elite” and “the people.” In particular, populists can “monkey wrench” the policy process by getting maligned elites to act against their own interests, even if the populists themselves can agree on no alternative policies. Using original archival materials, we illustrate how the transnational movement against the Multilateral Agreement on Investment in the late 1990s deployed monkey-wrenching. In so doing, we contribute to an understanding of how Benjamin Moffitt’s conception of the populist style can be deployed to analyze left-wing transnational nongovernmental policy entrepreneurs, instead of the right-wing national government aspirants who are often focused upon in political science research on populism. We conclude that interdisciplinary scholarship between political scientists and historians can identify circumstances when populists’ influence on policy is more likely.

The Struggle for and against Globalization

With the exception of the Multilateral Agreement on Investment, never before have international trade agreements encountered such fierce opposition as ACTA, CETA, TTIP, and TPP. Public protest has become vociferous on both sides of the Atlantic, while political parties of various colour, parliaments, and even some governments follow suit. Growing numbers of citizens feel uneasy about their capacity to democratically voice their opinion, claim their rights, and advocate their interests in a world increasingly framed by international trade agreements stealthily negotiated among anonymous bureaucracies. Given that trade agreements no longer just lower or abolish tariff barriers, but regulate a number of policy fields, citizens suspect important shifts of power, and they are asking who represents whom in pertinent negotiations and to whose advantage. This chapter concludes by advocating the strengthening of representative democracy and greater responsiveness of elected officials as a possible solution.

9 ICSID from 1989 to 1999

This chapter deals with the last year of the 1980s and all of the subsequent decade. Though mostly placid for ICSID, the period was one of momentous change elsewhere in the World Bank Group and, of course, in the world at large. Section I describes the growing network of investment treaties, which was to have a tremendous impact on ICSID. The Multilateral Agreement on Investment episode is also discussed. There were many new signatures and ratifications of the ICSID Convention in the 1990s. They are recounted in Section II, which also looks at the working of the ICSID Secretariat during the decade. An overview of the cases submitted to ICSID between 1989 and 2000 is provided in Section III. Among them were the first Additional Facility cases. The Additional Facility cases, six of which were brought to the Centre under the investment chapter of the NAFTA, are examined in Section IV. The potential of bilateral investment treaties (BITs) to generate cases for ICSID started to be realized in earnest in this period. Several of the new BIT cases led to decisions that were particularly influential in the development of subsequent jurisprudence. These leading BIT cases are examined in Section V.