Table of Contents

Comparative Law and Regulation

Comparative Law and Regulation

Understanding the Global Regulatory Process

Research Handbooks in Comparative Law series

Edited by Francesca Bignami and David Zaring

Governance by regulation – rules propounded and enforced by bureaucracies – is taking a growing share of the sum total of governance. Once thought to be an American phenomenon, it is now a central form of state action in every part of the world, including Europe, Latin America, and Asia, and it is at the core of much international lawmaking. In Comparative Law and Regulation, original contributions by leading scholars in the field focus both on the legal dimension of regulation and on how this dimension operates in those places that have turned to regulation to meet their obligations.

Chapter 18: International investment law and regulatory governance

Jason Yackee

Subjects: law - academic, comparative law, regulation and governance


In this chapter I discuss how certain national governments (“states”) are trying to transplant domestic norms of regulatory governance into the realm of international investment law (IIL). I also discuss how international arbitral tribunals that interpret and apply international investment law are applying autonomous international law standards of administrative good practice to discipline national-level bureaucracies. The picture I describe is something like a two-way street, with principles of regulatory governance flowing from the domestic to the international level, and vice versa. My discussion is primarily descriptive rather than theoretical or normative. The chapter proceeds as follows. First I offer a short description of the IIL system. Secondly, I describe how the United States has begun inserting notice-and-comment provisions fashioned after the U.S. Administrative Procedure Act (APA) in its bilateral investment treaties (BITs). Thirdly, I discuss how international tribunals are using the vague language of BITs to articulate potentially stringent standards of administrative behavior on domestic agencies. Fourthly, I discuss how criticism of the IIL regime has led to reforms aimed at increasing the transparency of the regime and opportunities for direct public participation in regime proceedings. The final section provides some brief concluding thoughts. Before proceeding, it is important to recognize that the main academic and public policy debate about IIL is whether it undesirably limits the ability of states to regulate in the public interest.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information