The global governance of FDI and the non-market strategies of TNCs: explaining the “backlash” against bilateral investment treaties

This article seeks to explain recent decisions by countries to terminate their existing bilateral investment treaties (BITs) and revisit their commitment to future international investment agreements (IIAs). It argues that BITs, transnational corporations (TNCs), host States and international arbitration institutions form a decentralized system of global governance of foreign direct investment (FDI), based on insights from the fields of international political economy and international law, and that the nonmarket strategies of these TNCs have not only shaped the contours of this system but have also prompted host States to reform this system, from the perspective of a “political bargaining model”. The article illustrates this argument through the case of South Africa, which terminated its BITs with several European countries as a response to cases of investor–State dispute settlement (ISDS) and has sought to redefine its engagement with this system of global governance as a result.