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Regulatory chill and the threat of arbitration: a view from political science

By Kyla Tienhaara - (This problem is called by various names, including "Chilling Effects" "Fright to Regulate" etc.) Abstract: The academic literature on international investment treaties, foreign investment contracts and investor-state dispute settlement is dominated by legal analysis. This is understandable in light of the complexity and, until recently, relative obscurity of the field. However, it is imperative that scholars from other disciplines now become more actively engaged in the critical debates surrounding investment law and investment arbitration in particular. One example of an issue that has been inadequately addressed and often prematurely dismissed by legal scholars is ‘regulatory chill’. Fundamentally, the notion of regulatory chill suggests that investment arbitration - as an institution 1 - may influence the course of policy development. For reasons that will be laid out in this chapter, investigating regulatory chill requires methods and approaches more familiar to political scientists than to lawyers.