Why do states consent to ISDS in their national laws?
@Taraldla and I summarised our @RIPEjournal article for ITN: https://www.iisd.org/itn/2020/06/20/why-do-states-consent-to-arbitration-in-national-investment-laws-tarald-berge-taylor-john/
We find a strong correlation between receiving World Bank technical assistance and providing consent. 1/

First, how strong is this correlation?
Of the 65 states that have received investment law advice from World Bank’s Foreign Investment Advisory Service (FIAS), 30 included arbitration in their law. That’s strikingly high given the hurdles to passing legislation. 2/

WB officials began telling developing countries in the 1960s they could consent to ISDS in national law. Today FIAS describes consent to ISDS in national law as “international best practice.” Yet *no* developed country has provided consent to ISDS in their national law. Ever. 3/

We find governments with more ISDS experience are less likely to consent, in line with @emma_aisbett + @laugepoulsen’s work.
“I think the government did not deliberate much in 2003, we didn’t have any cases. If we had, all of the Kyrgyz government would have been against it.” 4/

We also find that providing ISDS access has never been a formal condition of receiving a WB loan. Yet some governments pass the law with consent while a WB loan application is pending. 5/

To be clear: we think technical assistance/capacity building is important. I’m optimistic about the assistance mechanism that may emerge in UNCITRAL reforms. This CCSI Scoping Study by @lisejohnson1 + @bskartvedt is outstanding. http://ccsi.columbia.edu/work/projects/securing-adequate-legal-defense-in-proceedings-under-international-investment-agreements-a-scoping-study/

Our work seconds their conclusion that a design that responds to user needs and is accountable to users is crucial. There’s too much evidence of technical assistance falling victim to perverse incentives already. See this Cooley and Ron paper: https://www.jstor.org/stable/3092151  7/

Once you look for them, stories of technical assistance leading to ill-advised or irresponsible policies are not uncommon: https://twitter.com/PEusman/status/1277274516729860097 8/

We see this paper as a start. We focus on FIAS but it is one of many providers of advice. Law firms, other IOs, bilateral aid agencies also play roles. National investment laws matter and deserve more study. Plus now that’s easier due to @UNCTADwif’s digitisation work. 9/

Oh, one last thing. The paper. https://doi.org/10.1080/09692290.2020.1719429
Or here’s the ungated version: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3447365 Heartfelt thanks to everyone who spoke with us and to those who read and commented. End/