Another ISD Follow Up

Since I seem to only blog about investor-state dispute related issues, I thought I pass along a recent UNCTAD policy note about reforming the ISD system.

UNCTAD's summary of the report's key findings:

Concerns with the current ISDS system relate, among others things, to a perceived deficit of legitimacy and transparency; contradictions between arbitral awards; difficulties in correcting erroneous arbitral decisions; questions about the independence and impartiality of arbitrators; and the length and the costs of arbitral procedures. These challenges have given rise to a broad discussion about the need to reform the current system of investment arbitration. To give shape to this debate, the Note puts forward five main reform paths:

1. Promoting alternative dispute resolution.
2. Tailoring the existing system through individual IIAs.
3. Limiting investor access to ISDS.
4. Introducing an appeals facility.
5. Creating a standing investment court.

Each of the five proposed reform options comes with its specific advantages and disadvantages and responds to the main concerns in a distinctive way. Some of the options can be implemented via actions by individual governments, while others require joint action by a larger group. The options that require collective action would go further in addressing the existing problems, but would also face more difficulties in implementation. The Note calls for a multilateral policy dialogue on ISDS to search for a consensus about the preferred course for reform and ways to put it into action.

A BIT (sorry) More on ISDs

A nice discussion of my article with SBD at The National Interest has taken place in comments at the International Economic Law and Policy Blog, mostly centering on the question of investor-state dispute (ISD) clauses in trade deals. A bit wonkish (okay very wonkish), but potentially very important as well.

Mark Kantor, who is affiliated with Georgetown and Columbia Universities, has disagreed with our take on ISDs, which is that a US-EU trade deal could precipitate a general decline in their usage. He raises some very good points; you should read them. He may very well be correct. (Although he's wrong to say that we don't take into account recent US and EU ISD behaviors, including the inclusion of ISDs in the model BITs of the US and EU; in fact we mention that specifically.)

But I'm not quite ready to give up our claim just yet. Via Nathan Jensen, here's a recent report in Columbia FDI Perspectives by Joachim Karl of UNCTAD demonstrating, among other things, the increased costliness to governments (including those of developed economies) of ISDs. One highlight:

Governments face a dilemma. While many governments consider ISDS a key element of international investment protection, ISDS is becoming increasingly risky. For one, governments’ risk of being sued by foreign investors is growing. Second, when a dispute arises, the defence requires enormous resources; if a case is lost, damages can be very high. Third, governments live with an unpredictable arbitration practice without having the legal safety net of an appellate body like in the WTO. Fourth, complex domestic legal issues reaching beyond international investment law are examined by international arbitrators. Fifth, as more disputes are directed against countries with highly developed domestic judicial systems, governments need to ask themselves how positive discrimination of foreign investors in respect of ISDS can be justified.

Karl notes that many countries are in something of a holding patterns regarding ISDs: not ready to do away with them, but not exactly expressing enthusiasm for them either. He also notes that the US is one of the leaders in restrictions to and regulations of ISDs. As such, if the US decides to de-emphasize ISDs it could provide momentum for a more general movement in that direction. the Here's part of the crux:

Overall, the existing ISDS system is no longer recognized as an indispensable core part of IIAs. Discontent is not limited to a few developing countries, but has spread to G-20 countries, including some of the BRICs. Further momentum could jeopardize the ISDS system as a whole.

We suggest that, for political reasons, a US-EU FTA/BIT could be part of that momentum if it excludes an ISD, and there are good reasons to believe that it might. In fact, that is our argument.

We could be wrong, but it's nice to know that we're not the only ones thinking along these lines.

Argentina Withdraws From ICSID

In a follow up to my previous post, Argentina has announced its intention to withdraw from ICSID. In this clip, government officials and commentators emphasize favoritism of firms over governments in ICSID rules. It bears mentioning that, according to ICSID case statistics, 48% of all cases ever referred to ICSID resulted in a monetary judgement in favor of investors. In 2012, 60% of all referred cases resulted in a similar monetary judgement. So, perhaps opinions on whether ICSID is biased toward investors depend in part on whether you look at levels vs. change. And, it bears repeating, Argentina has (probably) never paid an arbitral award.

HT Rob Galantucci

If you incentivize it, will they come?

On Monday, I argued investment incentive policy is best understood within a political framework that takes seriously the electoral incentives state and local officials face. Looking through the New York Time's interactive database of investment incentives, it is striking how widely states vary in the amount of incentives offered. What explains this variation? One possible explanation is individual agency. Perhaps Texas has a very large incentive program because of the political influence of G. Brint Ryan; this is the implicit argument forwarded in the New York Times Investigative Series on Investment Incentives. Comparative political economists would point to institutional variation; differences in governance structures and how susceptible local governments are to corruption may explain the extent to which states pursue incentive programs.* Partisanship might matter too, although it is difficult to make the case that voters see incentives as clearly benefiting benefit at the expense of workers. Indeed, as I mentioned on Monday, experimental evidence suggests voters see incentives through the prism of job creation. This makes a partisan-based mechanism less plausible.

While people and institutions may help explain a portion of variation in incentive programs, I’d argue structural conditions are most important. (This probably won’t surprise readers of the blog – contributors here tend toward thinking about the world in such terms.) As I mentioned in Monday’s post, states and localities are working to attract jobs in a context of open capital markets. Consequentially, absent transaction costs, capital is mobile while labor is relatively fixed and this makes capital strong. Capital gets locational incentives because its exit option is credible. Labor, however, is captive so governments can tax it more. The problem with this view (besides the fact that suggesting governments face little pressure to reduce taxes on middle-class workers will get you laughed – and voted - out of Washington these days) is that the global economy, while open, is not frictionless. Transaction costs, or in network terms, negative externalities are important.

There is a large literature in economics on agglomeration effects – basically the idea that centers of economic activity form due to positive externalities generated by the success of a few enterprises.** In the 1950s, Detroit was perhaps the best example of one of these centers. Successful, large manufacturing enterprises require deep supply chains, preferably located with geographic convenience to reduce transportation costs and to decrease production times. Competitors often locate nearby to be better able to recruit management, design, and other knowledge workers. In network terms, when a fit enterprise center emerges, preferential attachment reinforces that center.

Today, thriving centers of economic activity in the US include New York City, the Silicon Valley, and perhaps even NC’s own Research Triangle Park. It is then not surprising that, according to the New York Times report, California is reducing its incentive program, which is already comparatively small at $112 per capita. New York and North Carolina have relatively low per capita incentive programs, $210 and $69 respectively. Compare that to the three largest incentive programs on a per capita basis – Alaska at $991, West Virginia at $845, and Texas at $759. Economic geography matters. The states with the largest incentive programs are those that either never generated large centers of economic activity, or whose centers have become obsolete as our economy has shifted from manufacturing to services.

Economic centers form due to a confluence of factors, some of which governments have control over and some that they don’t. Investments in education and infrastructure can provide a skilled workforce and inexpensive access to energy, telecommunication, water, and transportation networks. And, it is true that offering locational incentives may reduce governments’ ability to invest things that will actual increase their locality’s fitness. But, this ignores the fact that incentive programs are fundamentally designed undermine powerful network effects that concentrate economic activity. That is why they are so inefficient; because they are swimming against the current. Fitness is not the whole story – preferential attachment entrenches economic centers. So, incentives ultimately are big risks – if you are lucky, you may attract enough high-quality enterprises that you can build a thriving center. But, network dynamics are working against you.

* Nate Jensen pointed me to this particular NBER working paper , which finds evidence that corruption increases incentive programs.

**See here (firewalled) for a review.

Why do governments buy companies when they could just steal them?

The WSJ reports Venezuela is negotiating to purchase a majority stake in French company Casino Guichard-Perrachon SA's local subsidiary, Cativen. Casino offered to sell a few weeks after Venezuela seized Casino's local grocery chain. So, the obvious (but ignored by the WSJ) question is why would Venezuela pay for a company it can seize?

Of course, international institutions could pay a role. Several multinationals are currently pursuing international arbitration to dispute what they deem unfair payouts, and Venezuela needs new FDI. Negotiating a buyout may be a way for Venezuela to reestablish a pro-investment reputation (though, given Chavez's domestic agenda, investors probably need a bit more than news of a fair buyout to make them more willing to invest in the country). But, if Venezuela is trying to reestablish its reputation, it probably wouldn't have seized Casino's grocery chain in the first place.

Perhaps there's a domestic interest group story at work here. I wouldn't be surprised if influential constituents of Chavez's have some sort of stake in a negotiated buyout.

The recent Venezuelan example highlights a failure of IPE scholarship in explaining political determinants of FDI and investment expropriation. Most of this literature (my MA thesis-in-progress included) focuses on institutional solutions to incomplete contracting problems associated with foreign investing. But, this framework for analysis often forgets that domestic constituents often have real interests in protecting the investments of certain foreign firms. The Casino-Venezuela case is particularly interesting because Venezuela has consistently refused to be constrained by international investment treaties in recent years. Yet, at least some firms can get some sort of compensation for expropriation even in an environment devoid of institutional constraints.

Institutions often matter, but there's another layer to the story.