A little while back, I wondered about public opinion on investment obligations. In this regard, my friend Luke Peterson points me to some data on Americans' views of ICSID. It's such awful data, though, that I should probably just ignore it. I only highlight it to make suggestions for how a better job could be done in the future.
The approach is described in this Columbia FDI Perspectives paper. The authors note that "1,000 individuals were asked nine foreign policy questions, including questions about support for the WTO, the ICC and ICSID. Approximately a quarter of the sample received a control version consisting of a brief introduction and the question concerning support for ICSID."
Here is the ICSID question:
“[ICSID] was established in 1965 to facilitate the settlement of disputes between countries and foreign investors. Use of ICSID courts is voluntary but binding when a provision for ICSID arbitration is written into investment contracts. Should U.S. citizens and corporations be subject to international court rulings from the ICSID?”
This tells you so little about what's involved with ICSID that it's just not worth asking! For what it's worth, "[l]ess than a third (32%) expressed support for ICSID, with 28% directly rejecting the idea that US citizens and corporations should be subject to ICSID rulings. ... less than 40% answered “Don’t know.”" But given the vagueness of the question, I don't think the data are worth anything.
The authors note that "the remaining respondent pool received additional information concerning the economic benefits of ICSID, as well as the actors that helped establish ICSID. The establishment process was attributed to one of three randomly assigned groups: bipartisan Congressional action, Congressional Democrats and Congressional Republicans." Here is the additional information:
“To dispel any concern that ICSID awards would be overridden in the U.S. court system, [Congress enacted, on a bipartisan basis | Congressional Democrats helped to enact | Congressional Republicans helped to enact], a statute obligating U.S. courts to give ICSID awards "the same full faith and credit" as if the award was a judgment of a court in the United States. Ensuring compliance with ICSID awards reduces uncertainty for foreign companies. This agreement to abide by common rules makes the U.S. more competitive for foreign direct investment dollars, which create jobs in the United States. Should U.S. citizens and corporations be subject to international court rulings from the ICSID?”
It's great that people try to do this kind of polling. But it just seems to me that they should put a little more effort into the process. You can't just ask about ICSID as if its role is well-understood! Explain the substantive law; explain any benefits to U.S. companies; explain that U.S. laws can be challenged.
Also, don't make things up, like the suggestion that this "creates jobs in the United States"!
I've rarely seen a poll on trade issues that was well designed and useful. I'm convinced it can be done, though. Anyone reading this, please feel free to take a shot at it in the investment law context!
(And by the way, the WTO questions were not much better).
