The Return of the Home State to Investor-State Disputes: Bringing Back Diplomatic Protection?

Book description:

This book advances the idea that in order to address some of the criticisms against investor-state dispute settlement, a large majority of states have taken a 'normative' strategy, negotiating or amending investment treaties with provisions that potentially give more control and greater involvement to the contracting parties, and notably the home state. This is particularly true of agreements concluded in the past fifteen years. At the same time, there is a potential revival of the 'remnants' of diplomatic protection that are embedded in investment treaties since the beginning of the system. But why is the home state being brought back into a domain from which it was expressly excluded several decades ago? Why would a home state be interested in intervening in these conflicts? Is this 'new' role of the home state in foreign investment disputes a 'return' to diplomatic protection of its nationals, or are we witnessing something different?

Reviews:

‘Whilst the role the state in the current debate on ISDS focuses on the role of host states, Rodrigo Polanco brilliantly reverses the prospect. Rigorously researched, the thorough legal analysis addresses the policy factors involved with a highly balanced sensibility. An essential read for all those who wish to acquire an intelligent and comprehensive view on the legitimacy and the prospects for reform of ISDS at the time of sovereignism.’
-Attila M. Tanzi, Università di Bologna and Associate Member of 3VB Chambers

‘This book highlights the nearly-forgotten 'other' player in the investor-state dispute settlement context: the home state. Backing his claims with both historical and empirical data, the author’s analysis of the influence of the host state on the results of investor-state arbitrations through the centuries is elegantly convincing. Creative as well as informative, even readers well-acquainted with the subject of investment arbitration will enjoy reconsidering conventional wisdom in light of this volume’s findings.’
-Krista Nadakavukaren Schefer, Swiss Institute of Comparative Law

‘Through a comprehensive historical analysis, this book introduces an innovative approach to the settlement of disputes from the perspective and main concerns of foreign investors’ home States. The author deals with key legal features of the institution of diplomatic protection and describes home States’ attitudes to regaining control of investment treaties and treaty interpretation. The book represents a valuable contribution to monitoring actual as well as future tensions among the main players in investor-state disputes.’
-Raúl Vinuesa, Universidad de Buenos Aires

‘In this important and engaging book, Polanco explores the history of investor state disputes and asks whether there is a revival of remnants of diplomatic protection. He demonstrates that home states are reclaiming control of investor-state dispute settlement but that this is a return of the state in a different way. This book is an impressive contribution to understanding the changing nature of investor state dispute settlement.’
-Andrew Newcombe, University of Victoria and Investment Treaty Arbitration