Boilerplate in International Economic Law

Abstract

Boilerplate treaty provisions are identical or nearly identical terms that reflect settled legal language in treaties with different states parties. They are often taken from model treaties or templates and reflect non-negotiated “default rules” or rules that emerged in international practice, rather than individually tailored provisions adapted to the circumstances of the specific contracting parties. Although widespread in international economic law, boilerplate provisions have not been subject to much scrutiny, unlike their distant cousins in contract law. This essay highlights drivers and functions of boilerplate in international economic law along with core expectations from rationalist and behavioral approaches. Boilerplate can provide efficient solutions to international economic problems, for instance by reducing contracting costs, and provide bargaining leverage in asymmetric negotiations. Yet boilerplate can also result in unintended and unwanted consequences, such as when drafters fail to carefully consider “default” provisions or have an excessive preference for the status quo.