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What Explains the Low Success Rate of Investor-State Disputes?

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  • Pelc, Krzysztof J.

Abstract

The treatment of foreign investment has become the most controversial issue in global governance. At the center of the controversy lies the mechanism of investor-state dispute settlement (ISDS), which allows private firms legal recourse against governments if government interference has degraded their investment. Using newly released data covering 742 investment disputes, I assess some of the central claims about ISDS. I argue that the regime has indeed undergone an important shift: a majority of claims today deal not with direct takings by low-rule-of-law countries, but with regulation in democratic states. Such “indirect expropriation” claims have seen a precipitous decrease in their odds of legal success over the past twenty years. They are also far less likely to result in early settlement. These parallel trends may be a result of a rise in strategic litigation by investors whose aim is not only to obtain compensation but also to deter governments' regulatory ambitions.

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  • Pelc, Krzysztof J., 2017. "What Explains the Low Success Rate of Investor-State Disputes?," International Organization, Cambridge University Press, vol. 71(3), pages 559-583, July.
    • Handle: RePEc:cup:intorg:v:71:y:2017:i:03:p:559-583_00
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    Cited by:

    1. Leslie Johns & Calvin Thrall & Rachel L. Wellhausen, 2020. "Judicial economy and moving bars in international investment arbitration," The Review of International Organizations, Springer, vol. 15(4), pages 923-945, October.
    2. Kalyanpur, Nikhil & Newman, Abraham l., 2021. "The financialization of international law," LSE Research Online Documents on Economics 122529, London School of Economics and Political Science, LSE Library.
    3. Julian Donaubauer & Eric Neumayer & Peter Nunnenkamp, 2018. "Winning or losing in investor‐to‐state dispute resolution: The role of arbitrator bias and experience," Review of International Economics, Wiley Blackwell, vol. 26(4), pages 892-916, September.
    4. Florencia Montal & Carly Potz-Nielsen & Jane Lawrence Sumner, 2020. "What states want: Estimating ideal points from international investment treaty content," Journal of Peace Research, Peace Research Institute Oslo, vol. 57(6), pages 679-691, November.
    5. Tuuli-Anna Huikuri, 2023. "Constraints and incentives in the investment regime: How bargaining power shapes BIT reform," The Review of International Organizations, Springer, vol. 18(2), pages 361-391, April.
    6. Joseph Warren, 2024. "How the structure of legal authority affects political inequality," Constitutional Political Economy, Springer, vol. 35(2), pages 151-173, June.
    7. Seungjun Kim, 2023. "Protecting home: how firms’ investment plans affect the formation of bilateral investment treaties," The Review of International Organizations, Springer, vol. 18(4), pages 667-692, October.
    8. Vincent Arel-Bundock & Clint Peinhardt & Amy Pond, 2020. "Political Risk Insurance: A New Firm-level Data Set," Journal of Conflict Resolution, Peace Science Society (International), vol. 64(5), pages 987-1006, May.
    9. Timm Betz & Amy Pond & Weiwen Yin, 2021. "Investment agreements and the fragmentation of firms across countries," The Review of International Organizations, Springer, vol. 16(4), pages 755-791, October.

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