Does ownership matter? Claimant characteristics and case outcomes in investor-state arbitration

Abstract

ABSTRACT The power of foreign investors has become a key component in debates on sovereignty and globalisation. Here the mechanism of investor-state dispute settlement (ISDS), which allows firms legal recourse against host governments, has come to the forefront of debates over corporate rights in the contemporary era. While proponents laud ISDS as a neutral and efficient means of dispute resolution, critics claim that it shields transnational corporations from the oversight of national legal systems while enhancing their ability to interfere in host state policy matters. Despite the rich literature on ISDS, we know relatively little about the identity of corporate actors who use these mechanisms. Who are these foreign firms that take governments to court? Do different companies use these mechanisms to different effect? This article examines the impact of corporate ownership on ISDS outcomes in 241 cases from 1996 to 2014. Our results suggest that ownership matters. While public and private companies demonstrate similar propensities to settle, respondent states are less likely to win cases that are brought by a publicly traded company. For host-governments, this finding is particularly significant given that public companies demand more – and are likely to win more – in damages than private companies.