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Investment Treaties and the Legal Imagination
This book brings a new perspective to the subject of international investment law, by tracing the origins of foreign investor rights. It shows how a group of business leaders, bankers, and lawyers in the mid-twentieth century paved the way for our current system of foreign investment relations, and the investor-state dispute settlement mechanism.
The 'Invisible' Local Communities
International investment law is relational. It is about how we define and govern the relationship between the actors involved in and affected by foreign investment projects. Most international investment law literature confirms the relational nature of this field. The scholarship has analyzed the resolution of specific disputes and the regulatory relationship between foreign investors and host states. As could be expected, some of the key issues that have emerged include states' right to regulate, the risk of regulatory chill, and how to review state regulation. There is, however, an important blind spot in this relational approach. A look at many foreign investment disputes, particularly in...
The International Investment Regime and Foreign Investor Rights
The international investment regime (IIR) continues to be subject of an intense debate. After a first wave of criticism, investment arbitration and awards have shown some changes in areas such as transparency and deference. However, the calls for reform have not ceased; to the contrary, they have exacerbated. Most critical research continues denouncing investment arbitration as a way of settling foreign investment disputes. Those who defend the IIR in turn claim that the use of proportionality can resolve most of the existing concerns in this field.This article claims that these views overlook a relevant side of this story. Investment arbitration and state authority are the only controversia...
The International Investment Regime and Local Populations
The laws that govern the allocation and use of resources can not only annihilate individual property rights but also destroy community. Locals' participation in decisions about property is therefore vital. This article argues that local populations currently have a limited voice in foreign investment decisions, and that the international investment regime contributes to this unfair result. The interpretation of investment tribunals, according to international investment treaties, relies on reasoning that promotes the calculability of investments and the trust of foreign investors above all. Often, this interpretation threatens other property rights and community values. This article illustrates these dangers using the cases of Aguas del Tunari v. Bolivia and Chevron v. Ecuador. It concludes by suggesting that international law can be part of a solution to these problems; but for that, we need to give local populations a meaningful role in foreign investment governance.
International Investment Law as Transnational Law
In the last twenty years, the international investment regime has attracted wide attention. Academics, policymakers and civil society have studied this regime using different analytical and normative frameworks, defending as much as criticizing international investment treaties and arbitration. Interestingly, however, there is not much literature analyzing international investment law through the lenses of transnational law. This limited interest is surprising given the transnational law origin of the regime - as shown by Sornarajah and Anghie - and the relevance of transnational law to understand the relationship between public and private law and international and domestic law in global ec...
Bridging the Gap Between Foreign Investor Rights and Obligations
In this article I propose to see the history of the international law on foreign investment as about the diffusion of investor rights as much as the resistance to investor obligations. My argument is that the divide between investment protection and the responsibility of foreign investors is one of the most significant features of the international law on foreign investment. The article shows that the different treatment of rights and obligations is grounded on the same business project and legal imagination. Maintaining this divide has never been easy, as this model faced resistance, particularly from Latin America, trade unions and human rights activists. The article concludes by noting that while mainly states can create international investor obligations, academics can contribute to reimagining the international law on foreign investment by bringing investment treaty law and business and human rights much closer. This shift is already happening.
Taking Local Expectations Seriously
The international investment regime is one of the most controversial areas of international law. Although there are a number of proposals to reform this regime, most of them are centred on safeguarding states' right to regulate. This article claims that this approach overlooks important political economy challenges. By looking at foreign investor rights through the lenses of property law and theory, this article shows that the international investment regime privileges foreign investors' expectations to the detriment of local actors. The costs and risks of foreign investment can exceed negative externalities, as these projects can also undermine local rights and values. A successful reform, therefore, needs to take local expectations seriously.
World Trade and Investment Law Reimagined
World trade and investment law is in crisis: new and progressive ideas are needed. Rules that facilitated globalization and supported global economic growth are being challenged. A system of global governance that once seemed secure is now at risk as the United States ignores the rules while developing countries struggle to escape restrictions. Some want to tear global institutions and agreements down while others try desperately to maintain the status quo. Rejecting both options, a group of trade and investment law experts from 10 countries, South and North, have joined hands to propose ideas for a new world trade and investment law that would maintain global growth while distributing costs and benefi ts more fairly. Paying special attention to those who have suffered from trade dislocation and to restrictions that have hampered innovative growth strategies in developing countries, they outline a progressive trade and investment law agenda in World Trade and Investment Law Reimagined.
International Economic Law's Wreckage
By purporting to depoliticize markets, international economic law complicates solutions to precarity and inequality within and between states and regions. Separating out markets from ordinary politics, the novel legal orders of trade and investment choose winners and losers, determining who will adapt to whom so as to render their policy goals most efficacious. In so doing, trade and investment law expresses preferences about how political and social life should be organized, rendering solutions to pressing social problems more difficult to address. This chapter interrogates these two legal regimes, arguing that they exhibit a similar tilt that favours global capital, precipitating similar l...
Reconceptualizing International Investment Law from the Global South
This book shows how the reform in investment regulation contributes to a broader attempt to transform the international economic order.
