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When Governments Break Contracts: Foreign Firms in Emerging Economies

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When Governments Break Contracts: Foreign Firms in Emerging Economies When Governments Break Contracts: Foreign Firms in Emerging Economies by Rachel L. Wellhausen M.Sc. European Political Economy: Transition London School of Economics and Political Science, 2005 B.A. Economics B.A. English B.A. Interdisciplinary Studies University of Arizona, 2004 Submitted to the Department of Political Science in partial fulfillment of the requirements for the degree of Doctor of Philosophy at the Massachusetts Institute of Technology June 2012 Copyright 2012 Rachel L. Wellhausen. All rights reserved. The author hereby grants to MIT permission to reproduce and to distribute publicly paper and electronic copies of this thesis document in whole or in part in any medium now known or hereafter created. Signature of Author………………………………………………………………………………………………………….. Department of Political Science April 18, 2012 Certified by: …………………………………………………………………………………………………………………….. Suzanne Berger Raphael Dorman-Helen Starbuck Professor of Political Science Thesis Supervisor Accepted by: ……………………………………………………………………………………………………………………. Roger Petersen Arthur and Ruth Sloan Professor of Political Science Chair, Graduate Program Committee 2 When Governments Break Contracts: Foreign Firms in Emerging Economies by Rachel L. Wellhausen Submitted to the Department of Political Science on April 18, 2012 in partial fulfillment of the requirements for the Degree of Doctor of Philosophy in Political Science ABSTRACT Emerging economy governments commit to protect the property rights of foreign firms through a variety of contracts, from treaties to direct agreements. In an era of liberalized capital flows, these contracts are thought to be self-enforcing: the fear of capital exit compels governments to honor their obligations. But extraordinary variation in contract sanctity in countries around the world suggests the inadequacy of this view. This dissertation seeks to explain the varying pressures on emerging economy governments to honor or break contracts with foreign firms. I find that foreign firms’ national origins play a key role in their contract sanctity. Firms of the same nationality are more likely to share political risks thanks to a variety of institutional and historical factors specific to the home-host country relationship. Co- national firms can also uniquely access diplomatic support. Shared risks and resources make firms more likely to act in ways costly to the host government when a co-national firm’s contract is broken. In contrast, firms are likely indifferent to breach with firms of another nationality. These firm-level reactions generate a counterintuitive result in the host country as a whole. The more diverse foreign firms’ national origins, the more space a host government has to compromise one national group’s contract sanctity without threatening broader capital access. Using quantitative analysis, I demonstrate that firms differentially draw down FDI after government breach of contract with co-national firms. I also use over 130 interviews with foreign investors in Ukraine, Moldova, and Romania to demonstrate that co-national actors’ protests are stronger and more effective when the foreign investor community is less nationally diverse. The theory offered here takes seriously the bilateral relationship embedded in each foreign investment transaction. Far from having faded from relevance in a world of economic globalization, bilateral relations shape foreign firm and diplomatic responses to breach. Because host governments breach contracts with certain foreign firms and are met with indifference by others, nationality diversity can be a liability to investors while providing an opening for governments to prioritize other goals over the property and preferences of foreign capital. Thesis Supervisor: Suzanne Berger Title: Raphael Dorman-Helen Starbuck Professor of Political Science 3 Acknowledgements This research was assisted by an award from the Eurasia Program of the Social Science Research Council with funds provided by the State Department under the Program for Research and Training on Eastern Europe and the Independent States of the Former Soviet Union (Title VIII). Additional support was provided by the Harvard Center for European Studies, the MIT Center for International Studies, the Kyiv School of Economics, the Danyliw Research Center at the Chair of Ukrainian Studies at the University of Ottawa, and the Production in the Innovation Economy project at MIT. Sincere thanks for feedback on the project over the years goes to Nathan Jensen, Juliet Johnson, Kathryn Hendley, Beth Simmons, Jim Alt, Ken Shepsle, Jennifer Tobin, Jens Hainmueller, Teppei Yamamoto, Edward Steinfeld, William Pomeranz, Phil Arena, Cynthia Buckley, Tsveta Petrova, Jordan Gans-Morse, Pey-Yi Chu, Stephen Chadouin, and many others at conferences and workshops along the way. At MIT, I could not have made it through without the support of my colleagues and friends. Special thanks go to Erica Dobbs, Gustavo Setrini, Hanna Breetz, Timea Pal, Gabi Kruks-Wisner, Paco Flores, Phil Haun, Gautam Mukunda, Joyce Lawrence, and Josh Shifrinson. The support of Greg Distelhorst and Jonas Nahm has meant more than I can say. I thank my dissertation committee members: my chair Suzanne Berger, David Andrew Singer, and Kenneth A. Oye. I have never had mentors like these. Ken steered me in new and fascinating directions during my first years at MIT. Under his guidance, I have indulged my inner nerd while working with the science and engineering side of the Institute. I value his creativity, his approach to teaching, and his friendship. Suzanne Berger taught me how to wrangle large projects, how to interview executives, how to save myself from getting lost in the weeds. I am grateful for having had so many opportunities to work alongside her, especially in our travels to the disparate locations of France, China, Ohio, and Arizona. I rely on her support and compassion. I have gone to David for daily advice for many, many days now. It is hard to summarize what this has meant to me. Without him, my career would not be on the path it is. It will take some time to get over my sadness when I am no longer down the hall from him. I thank my intrepid sister Emily for her friendship, through ups and downs. I thank my dear brother Kurt and his growing family. And my parents – I thank them for contributing so much to my life. My Mom’s generosity is overwhelming. And the hours and hours I spend on the phone learning from and laughing with my Dad are nowhere near enough. 4 Contents Chapter 1: Introduction 5 Chapter 2: A History of Government Breach of Contract 17 Chapter 3: National Diversity of the Investor Community and Contract Sanctity 84 Chapter 4: Quantitative Tests 121 Chapter 5: Foreign Firms and their Diplomats in Ukraine 149 Chapter 6: Sanctity and Breach in Moldova and Romania 213 Chapter 7: When Diversity Erodes Property Rights 263 Appendix: Qualitative Data and Methods 279 References 283 Data Sources 292 5 Chapter 1: Introduction Argentina chose to stop paying its bills when it faced economic crisis in the early 2000s. Dozens of multinational corporations with government contracts responded by suing the state. By March 2012, Argentina was six years overdue in paying two of the biggest resulting awards, totaling US$300 million, to a US gas transmission firm and a US water services firm. President Obama suspended US trade benefits for Argentina, linking the status of bilateral trade to Argentina’s treatment of two particular US foreign investors.1 As the conventional wisdom would have it, governments in emerging economies do everything possible to reassure foreign firms. At a minimum, governments respect the contracts they make with foreign firms. To do otherwise would bring on widespread capital flight and diplomatic turmoil. Yet despite such predictions, the Argentine government’s decision to break its contracts with foreign firms is anything but extraordinary. Governments around the world have sometimes nationalized, expropriated, or eaten away at the value of foreign-owned property. In summer 2009, for example, the Ukrainian Parliament shut down the country’s entire gambling industry after a deadly fire in a Russian-owned casino.2 The Estonian- owned Olympic Entertainment Group (OEG) shuttered its casinos, as ordered. But Ukrainian- and Russian-owned casinos, including casinos owned by the Russian firm in 1 Texas water services company Azurix petitioned the US government to withdraw Argentina’s trade benefits as early as 2010. “Azurix calls for action against recalcitrant Argentina.” Global Arbitration Review: 29 September 2010. The Argentine government argued that payment “would violate federal law.” Palmer, Doug. “Obama says to suspend trade benefits for Argentina.” Reuters: 26 March 2012. 2 As reported by a prominent Estonian newspaper, political fights over who could distribute very profitable gambling licenses prompted the disproportionate shutdown. Brettell, Ashley. “Olympic Cashes in Ukraine Chips.” The Baltic Times: 15 July 2009. 6 question, operated freely.3 OEG was in a bind: it could not legally reopen, but it knew that “almost half” of the country’s casinos were open just one day after the official shutdown.4 OEG soon liquidated its assets and sought compensation from Ukraine, citing Ukraine’s violation of its treaty commitments to fair and non-discriminatory treatment of Estonian firms. 5 In selectively enforcing the gambling ban, Ukraine, like Argentina, violated commitments it had made to protect foreign-owned property. In emerging economies
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