Abstract
There are two ways of thinking about institutional choice in the context of multilateral investment law reform. One starts from abstract principles, asking what policy goal investment law is supposed to achieve and what institutional choice most effectively advances that goal. The other draws on practical experimentation, asking what institutional choices states are making and how these choices perform in real life. Sergio Puig and Gregory Shaffer present a compelling analytical framework for the former, top-down approach to investment law reform. In this essay, I will scrutinize their analysis and argue that the latter, bottom-up approach is more promising.
Highlights
There are two ways of thinking about institutional choice in the context of multilateral investment law reform
The other draws on practical experimentation, asking what institutional choices states are making and how these choices perform in real life
The current investment regime resembles a global laboratory of investment law reform alternatives where states experiment with new policy goals and novel institutional designs
Summary
There are two ways of thinking about institutional choice in the context of multilateral investment law reform. I show that Puig and Shaffer’s framework is contingent on specifying investment law’s overarching policy goal as a common yardstick by which to compare institutional choices. As part of the current reform process, states are exploring new institutional alternatives, but are redefining what investment law is about in the first place. The current investment regime resembles a global laboratory of investment law reform alternatives where states experiment with new policy goals and novel institutional designs. This diversity limits the applicability of Puig and Shaffer’s top-down framework since states use different yardsticks to measure institutional performance. I end with the recommendation that we should let this experimentation run its course in the short term and in the medium term, distill best practices that can guide multilateral reform of investment law from the bottom up
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