Understanding the Global Regulatory Process
Edited by Francesca Bignami and David Zaring
Chapter 18: International investment law and regulatory 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.
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