Informal Multilateralism in the Shadow of Formal Bilateralism: UN Emanations in the International Investment Agreement Regime

It is currently widely accepted that multilateralism is contested and in flux. Moreover, the conventional wisdom holds that formal intergovernmental organizations (FIGOs) are ‘gridlocked’ and are in ‘decline.’ This presumed decline, so the argument goes, resulted in the rapid proliferation, or a ‘cascade’ of informal intergovernmental organizations (IIGOs) and other types of low-cost institutions. The shifting terrain of multilateralism have led observers to conclude that it is going through a process of deinstitutionalization and fragmentation. It also prompted efforts to identify key aspects of IIGOs, to differentiate them from FIGOs and to systematically collect data on and analyze their sources and consequences. This line of research was recently criticized for discounting the heterogeneity of IIGOs and for ignoring developments in the Global South. Moreover, the categories of FIGOs and IIGOs are not well suited to capture the phenomenon of emanations – IOs created by other IOs – and that this rather common IO type is poorly understood. In this paper, we seek to address these shortcomings by taking a closer look at the role of emanations in multilateralism, particularly from the vantage point of the Global South. We highlight the reality that even though they are often nested within FIGOs, emanations commonly have characteristics attributed to IIGOs. In doing so, claim that through emanations FIGOs acquire aspects of informality that are nested within their formal settings. Further, we show that even in the United Nations (UN), perhaps the quintessential gridlocked FIGO, some bodies have little formal power, and have therefore had to rely on informal, epistemic, authority and inter-institutional collaboration. This analysis also indicates that the prevalent gloom about FIGOs may be exaggerated and premature. Through traditional, seemingly mundane, tasks, emanations can engage in and shape multilateral cooperation in important ways. Insofar as they address issue-areas that divide the Global North and South, this has significant implications for multilateralism at the global level. We make the case for the plausibility of this argument by examining the role of two UN emanations – the UN Conference on Trade and Development (UNCTAD) and the UN Commission on International Trade Law (UNCITRAL) – in the context of the international investment treaty (IIA) regime. We highlight the reality that despite lacking decision and rule-making powers in this area, these two bodies were able to carve themselves meaningful roles in it and to shape its direction. They have done so through practicing traditional functions of FIGOs, acquiring a degree of epistemic authority and teaming up with ‘like-minded’ actors. In doing so, they turned their lack of formal authority into an advantage, an attribute commonly associated with IIGOs. This helped to advance the interests of the Global South in UNCTAD, which tends to prioritize development over investment protection, but less so in UNCITRAL, in which the relative importance of these objectives is more balanced.