The MFN standard and foreign investment: An uneasy fit?

C1 - Journal Articles Referee

The failure of Australian anti-corruption measures

In the wake of the AWB bribery scandal, Jürgen Kurtz reviews Australia’s commitment to combating bribery of foreign officials. Despite ratifying the OECD’s anti-bribery convention in 1999 and passing its own anti-bribery legislation in 1999, Australia has yet to establish proper implementation machinery or to charge any companies or individuals

On foreign investor ‘privilege’ and the limits of the law : a reply to Ivar Alvik

First published online: 07 August 2020International investment treaties are structurally characterized by inherent asymmetry in the (non-relative) legal protections extended to foreign investors vis-à-vis domestic companies and nationals. For many lawyers, ‘foreign privilege’ is deeply problematic as it violates a foundational legal principle – namely, equality before the law. Yet law and law alone cannot always offer a definitive answer of this sort. At the very least, legal hypotheses should be rigorously tested against insights from other disciplines that can offer sharp analytical light on the complex contours of a given phenomenon. In this reply, I explore the political economy of host state policy as it is formed against three categories of foreign direct investment (FDI). Conceptually (and empirically), this political economy matrix reveals sharply varying levels of risk of hostile state action against distinct forms of FDI. To be sure, this analysis alone does not justify the traditional and expansive model of bilateral investment treaty protections. Yet, at least for some categories, this political economy case reveals an internal problem that is difficult (if not impossible) for the state itself to resolve, and, thus, it may well be rational for such a state to leverage international norms to extend qualified extra-domestic priority to foreign actors

The Limits of Isomorphism: Global Investment Law and the ASEAN Investment Regime

This article probes the unique ontogenetic path of ASEAN’s regulation of foreign investment by juxtaposing global investment law and the ASEAN context. While the former delivers a powerful heuristic on isomorphism that ASEAN exhibits in its strong reflection of global investment norms, the latter sheds critical light on ideological and analytical blind spots by exploring distinct heterogeneities in ASEAN’s investment regulation. Those heterogeneities are not simply outliers but reflect important historical and cultural values inherent to ASEAN and its members. The insights uncovered in this article invite scholars and policymakers to define a new form of global investment law that is more inclusive and flexible than the strict and conventional paradigm

Legalizing the Asean way : adapting and reimagining the Asean investment regime

Published: 30 July 2018This Article explores the legalization characteristics of the investment rules of the Association of South-East Asian Nations (ASEAN). Measured against orthodox and external benchmarks, ASEAN's investment regime is relatively limited. We make the following two arguments in this Article. First, we argue that while ASEAN members have subscribed to global norms in their own collective investment rules, they have done so in an intentionally selective manner shaped fundamentally by key contextual dynamics. These encompass a complex combination of ASEAN members' unique deliberation modality (the ASEAN Way) informed by their shared historical experience coupled with negative social learning. Using those insights, we suggest that is both possible and desirable to understand the ASEAN approach as an independent and legitimate form of legalization, rather than as a failed or flawed model. Second, and relatedly, we argue that the idiographic nature of legalization in ASEAN compels us to rethink the conventional universal (nomothetic) approach to legalization and embrace a more nuanced conception

Beyond rational choice : international trade law and the behavioral political economy of protectionism

Published: 27 December 2019The classic political economy of trade models state behavior on the international plane by reference to the formation of domestic interests. Voters, interest groups, and politicians are rational actors in this model, pursuing their economic preferences without cognitive or motivational distortions. This article questions the sufficiency of the rational choice model in the formation of contemporary trade policy. Starting from the classic political economy story, this article explores real-world deviations from rationally expected outcomes by drawing on cognitive psychology. Using both theoretical and empirical analysis, we seek to identify key distortions that can better explain voter and politician behavior in the current trade wars. We begin with loss aversion in that individuals have asymmetrical attitudes towards gains and losses. Rising inequality within the rich world amounts to a perceived relative loss particularly for middle-class citizens. Combined with the absolute rise of equality between countries, this can trigger a double loss frame—both as an individual loss and a national loss—that can profoundly shape anti-trade preferences in certain countries. Framing trade as a security threat also invokes powerful hawkish biases. Lastly, the availability bias can be provoked by social media mechanisms making people tend to focus on particular risks and overweight their import

Beyond rational choice : international trade law and the behavioral political economy of protectionism

The classic political economy of trade models state behavior on the international plane by reference to the formation of domestic interests. Voters, interest groups and politicians are rational actors in this model, pursuing their economic preferences without cognitive or motivational distortions. This article questions the sufficiency of the rational choice model in the formation of contemporary trade policy. Starting from the classic political economy story, this article explores real world deviations from rationally expected outcomes by drawing on cognitive psychology. Using both theoretical and empirical analysis, we seek to identify key distortions that can better explain voter and politician behavior in the current trade wars. We begin with loss aversion in that individuals have asymmetrical attitudes towards gains and losses. Rising inequality within the rich world amounts to a perceived relative loss particularly for middle-class citizens. Combined with the absolute rise of equality between countries, this can trigger a double loss frame – both as an individual loss and a national loss – that can profoundly shape anti-trade preferences in certain countries. Framing trade as a security threat also invokes powerful hawkish biases. Lastly, the availability bias can be provoked by social media mechanisms making people tend to focus on particular risks and overweight their import

Principles governing the global economy

The main principles underlying the organisation of the global economy pre-date the Second World War, but mostly as ideas or policies, enshrined in domestic law, in international instruments of limited scope or in aborted attempts at designing far-reaching ones. The Second World War reset the approach to the global economy, either by taking such principles from a bilateral to a global level or by formulating new ones