Land grabbing has emerged as a significant issue in contemporary global governance that cuts across the fields of development, investment, food security, among others. Whereas land grabbing per se is not a new phenomenon, having historical precedents in the era of imperialism, the character, scale, pace, orientation, and key drivers of the recent wave of land grabs is a distinct historical phenomenon closely tied to major shifts in power and production in the global political economy. Land grabbing is facilitated by ever greater flows of capital, goods, and ideas across borders, and these flows occur through axes of power that are far more polycentric than the North–South imperialist tradition. In this introduction we argue that land grabbing speaks to many of the core questions of globalization studies. However, we note scholars of globalization have yet to deeply engage with this new field. We situate land grabbing in an era of advanced capitalism, multiple global crises, and the role of new configurati...

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Land Grabbing and Global Governance: Critical Perspectives

1 The Historical Development of Investment Treaty Law 2 Applicable Substantive Law and Interpretation 3 Treaty Titles and Preambles, Promotion, Admission and Establishment Obligations 4 National Treatment 5 Most-favoured-nation Treatment 6 Minimum Standards of Treatment 7 Expropriation 8 Transfer Rights, Performance Requirements and Transparency 9 Observance of Undertakings 10 Exceptions and Defences

Law and practice of investment treaties : standards of treatment

During the past few decades governments have signed nearly 2,700 bilateral investment treaties (BITs) with one another in an attempt to attract greater levels of foreign direct investment (FDI). By signing BITs, which contain strong enforcement provisions, investment-seeking governments are thought to more credibly commit to protecting whatever FDI they receive, which in turn should lead to increased confidence among investors and ultimately greater FDI inflows. Our unique argument is that the ability of BITs to increase FDI is contingent on the subsequent good behavior of the governments who sign them. BITs should increase FDI only if governments actually follow through on their BIT commitments; that is, if they comply with the treaties. BITs allow investors to pursue alleged treaty violations through arbitration venues like the International Centre for the Settlement of Investment Disputes (ICSID), a heavily utilized and widely observed arbitral institution that is part of the World Bank. Being taken before ICSID, then, conveys negative information about a host country's behavior to the broader investment community, which could result in a sizeable loss of future FDI into that country. We test these contingent effects of BITs using cross-sectional, time-series analyses on all non-OECD countries during a period spanning 1984–2007. We find that BITs do increase FDI into countries that sign them, but only if those countries are not subsequently challenged before ICSID. On the other hand, governments suffer notable losses of FDI when they are taken before ICSID and suffer even greater losses when they lose an ICSID dispute.

Contingent Credibility: The Impact of Investment Treaty Violations on Foreign Direct Investment

Bilateral investment treaties (BITs) have become the dominant source of rules on foreign direct investment (FDI), yet these treaties vary significantly in at least one important respect: whether they allow investment disputes to be settled through the International Centre for the Settlement of Investment Disputes (ICSID). Through the compilation and careful coding of the text of nearly 1,500 treaties, we identify systematic variation in “legal delegation” to ICSID across BITs and explain this important variation by drawing upon a bargaining framework. Home governments prefer and typically obtain ICSID clauses in their BITs, particularly when internal forces push strongly for such provisions and when they have significantly greater bargaining power than the other signatory. Yet some home governments are less likely to insist upon ICSID clauses if they have historical or military ties with the other government. On the other hand, although host governments are often hostile toward ICSID clauses, particularly when sovereignty costs are high, they are more likely to consent to such clauses when they are heavily constrained by their dependence on the global economy. Our findings have significant implications for those interested in FDI, legalization, international institutions, and interstate bargaining.

Delegating Differences: Bilateral Investment Treaties and Bargaining Over Dispute Resolution Provisions

This article presents and assesses a new wave of empirical research on international law. Recent scholarship has moved away from theoretical debates over whether international law “matters,” and focuses instead on exploring the conditions under which international law is created and produces effects. As this empirical research program has matured, it has allowed for new, mid-level theorizing that we call “conditional international law theory.”

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2004640_code702020.pdf?abstractid=2004640&mirid=5

The Empirical Turn in International Legal Scholarship

Bilateral and multilateral investment treaties, such as NAFTA, give foreign investors substantive rights - such as freedom from expropriation - as well as the right to sue host governments for violations of the substantive rights enumerated in the investment treaties. In the last five years, the number of arbitrations arising under investment treaties has skyrocketed; billions of taxpayer dollars are at stake and government conduct, which would otherwise past domestic muster, is subject to enhanced international scrutiny. The proliferation of these bilateral and multi-lateral investment treaties has led to an unprecedented increase in the number of arbitration tribunals convened to resolve investor-state disputes. Arbitral tribunals are now testing and evaluating a variety of international law rights for the first time. These private tribunals consider legal issues that impact the international economy, public policy and international relations, but they do so in a vacuum largely because of gaps in the academic literature and confidentiality obligations that prevent public decision-making. Substantive obligations in investment treaties are remarkably similar; notwithstanding these similarities, in the absence of valuable guidance from scholars or appellate bodies, arbitral tribunals have come to inconsistent decisions on the meaning of fundamental international law rights. This Article recommends a framework for analysis as well as a series of reforms designed to prevent inconsistent decisions from occurring and to correct inconsistencies when they occur. In terms of preventative measures, the article is a call to arms for academics to contribute to the literature in this emerging discipline to provide authoritative guidance for tribunals to use during the decision making process; it also recommends changes to institutional rules and treaties to enhance transparency and promote public scrutiny. In terms of corrective measures, this article rejects the treaty-by-treaty approach previously suggested within the literature. Instead, it proposes the creation of one independent and permanent appellate body with the authority to review awards rendered under the entire investment treaty network. These measures will promote the integrity and legitimacy of a private dispute resolution system with wide-ranging public implications.

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The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions

With the blossoming of empirical legal scholarship, there is an increased appreciation for the insights it offers issues of international importance. One area that can benefit from such inquiry is the resolution of disputes from investment treaties, which affects international relations, implicates international legality of domestic government conduct, and puts millions of taxpayer dollars at risk. While suggesting there has been a "litigation explosion", commentators make untested assertions about investment treaty disputes. Little empirical work transparently explores this area, however. As the first research that explains its methodology and results, this article is a modest attempt to evaluate claims about investment treaty arbitration. The article explores: (1) who is involved in arbitration and what is arbitrated, (2) increases in awards, (3) win/loss rates, (4) amounts claimed and awarded, (5) arbitration costs, (6) use of other dispute resolution processes, and (7) nationality and gender of arbitrators. Subjecting these areas to empirical scrutiny provides information that sets the stage for future research to provide insights to government officials responsible for negotiating investment treaties and parties planning their dispute resolution strategies. Ultimately, it offers factual information - grounded in a valid and reliable process - that stakeholders and commentators can use to promote dialogue about and evaluate the legitimacy of a dispute resolution process with profound public implications.

Empirically Evaluating Claims About Investment Treaty Arbitration

The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this article explores the role of development status in arbitration outcome. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The article then assesses how (1) the development status of the respondent state, (2) the development status of the presiding arbitrator, and (3) the interaction of these variables affect the outcome of investment arbitration. The results demonstrate that, at the macro level, development status does not have a statistically significant relationship with outcome. This suggests that the investment treaty arbitration system, as a whole, functions fairly and that the eradication or radical overhaul of the arbitration process is unnecessary. The existence of two statistically significant simple effects – namely that tribunals with presiding arbitrators from the developing world made smaller awards against developed states in particular circumstances – suggests that particularized reform could enhance the procedural integrity of arbitration. Irrespective of whether future research replicates the results, reforms targeted to redress possible imbalance in the system have the potential to enhance procedural justice and the perceived legitimacy of arbitration in an area with profound political and economic implications.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1461476_code718923.pdf?abstractid=1406714&mirid=5&type=2

Development and Outcomes of Investment Treaty Arbitration

In the last decade, there has been a surge in the number of multi-lateral and bilateral investment treaties governments have signed; meanwhile there have been dramatic increases in the amount of foreign direct investment (FDI); and, more recently, the number of claims brought under investment treaties has spiked. This Article examines the relationship amongst these factors and is the first to review the emerging empirical economic literature investigating whether investment treaties achieve their goal of promoting FDI. The Article then specifically evaluates the impact that the procedural right to arbitrate investment claims plays in the process of promoting FDI and facilitating investment decisions. It considers this issue directly by evaluating models with non-traditional treaty dispute resolution mechanisms and considering the impact on FDI levels. The article then looks at the indirect role that investment treaty arbitration can play in facilitating investment and promoting the rule of law. The Article concludes that investment treaty arbitration's precise impact on FDI is unclear; nevertheless, as it has important implications for investment and the rule of law, it is a factor worthy of ongoing consideration.

https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=882443

Foreign Direct Investment, Investment Treaty Arbitration and the Rule of Law

As a blossoming field of study, empirical legal scholarship can offer valuable insights on issues of international importance. The resolution of disputes from investment treaties is one such issue that affects international relations, implicates international legality of domestic government conduct, and puts millions of taxpayer dollars at risk. However, there is little empirical work that transparently explores this area. While suggesting there has been a “litigation explosion,” commentators make untested assertions about investment treaty disputes. As the first research article that explains its methodology and results, this Article is a modest attempt to evaluate claims about investment treaty arbitration. The Article explores: (1) who is involved in arbitration and what is arbitrated, (2) increases in awards, (3) win/loss rates, (4) amounts claimed and awarded, (5) arbitration costs, (6) use of other dispute resolution processes, and (7) nationality and gender of arbitrators. Subjecting these areas to empirical scrutiny provides information that sets the stage for future research to provide insights to government officials responsible for negotiating investment treaties and parties planning their dispute resolution strategies. Replication and convergence of such research offers an opportunity to

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Susan D. Franck

Papers

The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions

Empirically Evaluating Claims About Investment Treaty Arbitration

Development and Outcomes of Investment Treaty Arbitration

Foreign Direct Investment, Investment Treaty Arbitration and the Rule of Law

Empirically Evaluating Claims about Investment Treaty Arbitration