The Tide of the Times? A Sectoral Approach to Latin America’s Resistance to the Investor-State Arbitration System

by Tom Brower ~ Mar 30, 2016

Following a period of openness to foreign direct investment and the integration of arbitration agreements into relationships with foreign investors through international treaties and investment contracts, the last decade has witnessed the resurgence of resistance by Latin American nations to the investor-state arbitration system. What has fomented this recent resistance? While the literature has proffered a set of that primarily focus on country-level ideological positions and structural economic issues, these theories are largely disjointed and empirically limited in their explanatory power. This Note introduces principles from leading sector analysis to develop a singular theoretical framework that explains the empirical puzzle of Latin American resistance to investor- state arbitration. Specifically, this Note asserts that the market structure of the sector that is the target of investment plays a critical role in its capacity for collective action and causally affects the extent to which the sector can influence the host state in its stance vis- à-vis the investor-state arbitration system. Using a comparative historical analysis of Argentina and Venezuela, this Note finds strong qualitative evidence to support a sectoral approach to understanding Latin America’s tumultuous relationship with the investor-state arbitration system while controlling for existing explanations. Ultimately, this Note provides important theoretical and empirical contributions to one of the most salient issues facing the investor-state arbitration system. 

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