Fair Game, Fair Play : the Advocacy of International Assistance for Developing Host States in Negotiating Investment Contracts

The obsolescing bargaining model suggests that the bargaining power involving large-scale investment projects eventually shifts from investors to host States, especially in the extractive, land, and infrastructure industries. However, ISDS has become a potent mechanism for investors to claim remedies after a breach of contract, making it costly for host States to deviate from contractual terms. Hence, it is crucial to get investment contracts right at the negotiation stage. Yet, under-resourced developing countries often arrive at suboptimal contracts, due to a lack of clear objectives and a consistent strategy, multidisciplinary expertise, and access to information. Some institutional solutions are available, ranging from indirect to direct negotiation assistance. While helpful, indirect assistance is inadequate to meet the needs of developing countries. In comparison, direct negotiation assistance provided by organizations, such as ALSF, ISLP, and CONNEX, is more immediate and effective, and in the long-term interest of both host States and investors