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Legal conflicts between multinational firms and host governments are often decided by international arbitration panels - as opposed to courts in the host country - due to provisions in international investment agreements known as Investor State Dispute Settlements (ISDS). Critics fear that ISDS panels favor multinational firms, and thus make governments reluctant to adopt appropriate policies (regulatory chill). In this paper I develop an economic model to define regulatory chill and to analyze the effects of ISDS. Regulatory chill occurs when losses from regulatory mismatch are intermediate rather than very high. Moreover, if national courts are more likely to decide in favor of the host government than an international court, a unilateral shift to ISDS by one country is welfare worsening for the country. The net welfare change is more favorable, and sometimes - but not always - positive, when i) (symmetric) countries switch together to an ISDS based system, and when ii) foreign investment responds elastically to profit conditions.

Legal conflicts between multinational firms and host governments are often decided by international arbitration panels known as Investor State Dispute Settlements (ISDS). Critics fear that ISDS favors multinational firms, and make s governments reluctant to adopt appropriate policies (regulatory chill). I develop an economic model to analyze regulatory chill and show under which conditions a move to ISDS is beneficial.

AbstractDoes tariff liberalization cause regulatory chill by putting downward pressure on health, safety, and environmental standards? Or does it cause a race to the top as governments seek to use standards as nontariff barriers to trade? There remains remarkably little empirical evidence to answer these long‐debated questions. We seek to address this lack by analyzing annual country‐by‐industry data on notifications of changes in sanitary and phytosanitary standards by world trade organization members. Our results suggest that the impact of increased trade pressure depends on whether domestic producers are likely to gain or lose from a change in standards. Regulatory chill is the dominant response in most countries, but countries in which producers can adapt to standards relatively cheaply appear to race to the top. Consequently, tariff liberalization encourages divergence in standards across countries.

Regulatory chill, a key tension between international investment agreements (IIAs) and democratic governance, could be dealt with by creating liability insurance for governments. Existing government insurance programs provide helpful guidelines for an investment arbitration liability insurance that could protect governments' policy space while maintaining the protection IIAs provide to investors.

Regulatory chill, a key tension between international investment agreements (IIAs) and democratic governance, could be dealt with by creating liability insurance for governments. Existing government insurance programs provide helpful guidelines for an investment arbitration liability insurance that could protect governments' policy space while maintaining the protection IIAs provide to investors.

AbstractThe growing number of public policy measures challenged through investor‐state dispute settlement has raised critiques that international investment agreements could lead governments to avoid introducing new policy measures out of a fear that these could be challenged by foreign investors, often referred to as 'regulatory chill'. While the body of work on regulatory chill is still in its infancy, there is a need to interrogate extant studies to better understand the state of the knowledge and the methodological approaches being employed to produce an evidence base. Grounded in a critical review of the existing literature, this paper develops a conceptual framework of regulatory chill, identifying it as one possible policy response wherein investment agreements are internalised by policy makers as considerations during their policy decision‐making. Three distinct bodies of work were identified in the literature which helped to populate this framework, including analysis of investment treaty language and awards, interviews with policy makers to explore internalisation of such treaties, and case studies of suspected regulatory chill policy responses. The conceptual framework is intended to help drive forward a cohesive research agenda on regulatory chill that can underpin the ongoing investment treaty reform.