Investor-state dispute settlement: challenging private governance

Abstract

This chapter focuses on the management and resolution of disputes between states and global corporations. This aspect of the management of the global political economy was developed in the private realm, through the operation of dispute settlement clauses in bilateral investment treaties, but has recently become the subject of considerable levels of public policy concern. The struggle over jurisdiction can be seen is an almost Polanyian ‘double movement’ inasmuch as the disembedding of the management of market relations between states and corporations, is now subject to on-going attempts to re-embed such management within more formal international regulatory relations. The chapter, introduces and briefly reviews the history and political economy of investor-state dispute settlement, and discusses ongoing moves in two parts of the United Nations to shift this private regulatory structure into the public realm of international law as a key sign of this burgeoning ‘double movement’. The chapter concludes that the hegemony of the idea of corporate rights to recompense (damages) for political changes in host states may have passed its high-point and be entering a period of reform and negotiation in which states are able to (at least partly) rebalance the international regulation of corporate investment ‘rights’.