Legitimation through Modification: Do States Seek More Regulatory Space in Their Investment Agreements?

The starting point is the observation that some states are and have been unhappy with certain BITs that include ISDS provisions. Based on a dataset on renegotiated and terminated BITs, the authors ask if this is the case. The initial evidence indicates that states have not made a systematic effort over the years to recalibrate their BITs for the purpose of preserving more regulatory space. In fact, most renegotiations either leave ISDS provisions unchanged or render them more investor-friendly. Nevertheless, the authors find that this is beginning to change, as recent renegotiations are more likely to circumscribe ISDS in ways that preserve more state regulatory space.