International Investment Disputes, Media Coverage, and Backlash Against International Law

• Published date: 01 July 2022
• DOI: 10.1177/00220027221081925
• Date: 01 July 2022
• Author: Ryan Brutger,Anton Strezhnev
• Subject Matter: Articles

Article

Journal of Conf‌lict Resolution

2022, Vol. 66(6) 983–1009

© The Author(s) 2022

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DOI: 10.1177/00220027221081925

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International Investment

Disputes, Media Coverage,

and Backlash Against

International Law

Ryan Brutger

1

and Anton Strezhnev

2

Abstract

This paper puts forth a theory explaining domestic backlash against international in-

vestment law by connecting media coverage—specif‌ically the bias in the news media’s

selection of international disputes—to public opinion formation towards international

agreements. To test our theory, we examine both the content and effects of the

media’s reporting on international disputes, focusing on the increasingly controversial

form known as investor-state dispute settlement (ISDS). We f‌ind that newspaper

outlets in both the United States and Canada have a bias in favor of covering disputes

f‌iled against their home country as opposed to those f‌iled by home country f‌irms. Using

two national survey experiments f‌ielded in the United States and Canada, we further

f‌ind that the bias in news story selection has a strong negative effect on attitudes

towards ISDS and related agreements, especially among highly nationalistic individuals.

Keywords

international law, domestic politics, international cooperation, international

institutions, backlash, public opinion, investor-state dispute settlement, ISDS

1

Travers Department of Political Science, University of California, Berkeley, CA, USA

2

Department of Political Science, University of Chicago, Chicago, USA

Corresponding Author:

Ryan Brutger, Travers Department of Political Science, University of California, Social Sciences Building,

Berkeley, CA, USA.

Email: brutger@berkeley.edu

Introduction

An important area of international law known as investor-state dispute settlement

(ISDS) is facing an acute crisis of domestic backlash, which is threatening to destabilize

the international investment regime. The expansion of ISDS provisions in bilateral and

multinational trade agreements during the 2000s and early 2010s has placed increasing

scrutiny on this once obscure area of international law. In the United States, the issue

garnered signif‌icant attention from a wide range of media outlets and politicians during

the debate over whether to ratify the Trans-Pacif‌ic Partnership (TPP). Senator Elizabeth

Warren bluntly summed up her concern about ISDS’s inclusion in the TPP, noting that

“Agreeing to ISDS in this enormous new treaty would tilt the playing f‌ield in the United

States further in favor of big multinational corporations. Worse, it would undermine

U.S. sovereignty”(Warren, 2015). Similar backlash has extended across the political

spectrum, with Republican congressmen arguing for the removal of ISDS from NAFTA

because they view it as “undermining our sovereignty and threatening our system of

federalism with a form of international preemption”(Donovan, Fitzpatrick, and Joyce,

2017). Furthermore, the successor agreement to NAFTA, the U.S.–Mexico–Canada

Agreement (USMCA), has much more limited ISDS provisions in place between the

U.S. and Mexico, while Canada has withdrawn from the ISDS chapter entirely

(Debevoise & Plimpton, 2020). Likewise, the New Zealand Prime Minister announced

in the wake of the TPP negotiations that her Cabinet had “instructed trade negotiation

off‌icials to oppose ISDS in any future free trade agreements”(New Zealand

Government, 2017).

While investor-state dispute settlement is included in more than 3000 international

agreements, a substantial growth in the number of claims being f‌iled (Hafner-Burton,

Puig, and Victor, 2016) and the push to incorporate investment provisions within

bilateral and multilateral trade liberalization agreements has increased media, political,

and public attention on the issue. Recent scholarship has shown how this expansion of

claims has led states to alter their behavior: limiting their participation in new in-

vestment agreements (Poulsen and Aisbett, 2013), while renegotiating their existing

commitments (Haftel and Thompson, 2018). This is often done with the aim of

narrowing their obligations through greater precision in treaty language (Manger and

Peinhardt, 2017) in light of the growing scope of investor claims (Pelc, 2017).

1

Legal

scholarship has long debated the question of ISDS legitimacy and whether the arbi-

tration system is suffering a general legitimacy crisis as a consequence of its structure

and its decision-making outputs (e.g., Franck, 2004;Giorgetti, 2013;Waibel et al.,

2010). However, what explains the backlash to ISDS among the mass public remains an

open question.

The argument we propose focuses on the link between the international disputes,

media coverage of the disputes, and the resulting domestic attitudes toward interna-

tional law and ISDS. We argue that when states enter into international legal disputes,

domestic audiences update their beliefs about whether international institutions and

international law are benef‌icial or harmful to their and their country’s interests. While

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