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The Rise of Investor-State ArbitrationPolitics, Law, and Unintended Consequences$
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Taylor St John

Print publication date: 2018

Print ISBN-13: 9780198789918

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780198789918.001.0001

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Intergovernmental Bargaining

Intergovernmental Bargaining

“The Lowest Common Denominator Was Not yet Low Enough”

(p.68) 3 Intergovernmental Bargaining
The Rise of Investor-State Arbitration

Taylor St John

Oxford University Press

This chapter discusses the three proposals for investment protection discussed during the 1960s: a substantive code, an insurance organization, and an investor–state arbitration convention. Investors were largely uninterested in arbitration, except for a few individuals with personal experience of expropriation. While proposals for individual standing existed before, Hermann Abs’ proposals had a new resonance in West Germany during the 1950s. Abs’ proposals, even after modifications by Hartley Shawcross and others, had little chance multilaterally, however: America and the UK were opposed. By 1963, Germany and Switzerland lost interest in multilateral negotiations, as they realized they could get higher standards in bilateral investment treaties. German and Swiss treaties provided access to investment insurance, not investor–state arbitration. Proposals for a multilateral insurance agency were widely supported, but were not realized in large part because the World Bank refused to play an agenda-setting or brokering role for insurance during the 1960s.

Keywords:   Abs–Shawcross Draft, OECD Draft, Hermann Abs, Hartley Shawcross, investment insurance, individual standing, bilateral investment treaties, expropriation, critical juncture

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