The chilling effect of international investment disputes: Limited challenges to state sovereignty

Abstract

Despite suggestions that international investment disputes impose a chilling effect on governments' autonomy to set regulatory policies, we lack empirical confirmation of the phenomenon and what explains its heterogeneity across countries. Using a novel dataset of nine anti-smoking regulations in ninety-two countries from 1973 to 2016, I confirm the presence of the chilling effect, but also its boundaries. I show that countries have been significantly slower in implementing two anti-smoking policies formally challenged under investment law, while the adoption of seven undisputed regulations in this issue area continued unimpeded. Qualitative evidence from respondent and third-party governments confirm the policy-specificity of the chilling effect and show that both developed and developing countries were affected by the chill, albeit differently. By providing the first empirical confirmation of a regulatory chill and by defining its limited scope in one of the most high-profiled international investment disputes to date, my findings indicate that, even though multinational corporations can constrain state sovereignty, their effects are not necessarily expansive or indefinite.