Inordinate Chill: Bits, Non-NAFTA MITs, and Host-State Regulatory Freedom- An Indonesian Case Study
A number of structural factors, which are beyond the immediate scope of this Note, may influence less wealthy countries to cave in to investor threats of arbitration, as Indonesia appears to have done here. However, their hesitancy to fight may also be based, in part, on an inadequate understanding of the applicable law, which allows investors to inordinately influence host-State decisions through threats of arbitration that have little or no chance of success. In regard to the mining companies’ threat, this at least appears to be the case. As this Note will demonstrate, the GOI could have likely beaten the mining companies’ claims at a preliminary/jurisdictional phase, and certainly on the merits.