The Multilateralization of International Investment Law

Abstract

Attempts at developing a theory of international investment law are complicated by the fact that this field of international law is based on numerous, largely bilateral treaties and is implemented by arbitral panels established on a case-by-case basis. This suggests a fragmented and chaotic state of the law, with different levels of protection depending on the sources and targets of foreign investment flows. This book, however, forwards the thesis that international investment law develops, despite its bilateral form, into a multilateral system of law that backs up the functioning of a global market economy based on converging principles of investment protection. In discussing the function of most-favored-nation clauses, the possibilities of treaty-shopping and the impact of investor-State arbitration with its intensive reliance on precedent and other genuinely multilateral approaches to treaty interpretation, it offers a conceptual framework for understanding the nature and functioning of international investment law as a genuinely multilateral system.

Human Rights Promotion through Transnational Investment Regimes: An International Political Economy Approach

“…Indeed, Stephan Shill observes that investment treaties "have a constitutional function in providing a legal framework within which international investment activities can take shape and expand. As such, investment treaties are embedded in a larger framework of international law that overarches the individual bilateral treaty relations and establishes uniform rules for the conduct of host States that consist in adopting a liberal attitude vis-à-vis market mechanisms and that accept the limited role of the State vis-à-vis the economy" ( [16], p. 17).…”

International Customary Investment Law: Story of a Paradox

“…Indeed, international investment law constitutes the stage of the pitted confrontation between liberal and communitarian approaches to the world economy. The former, usually embraced -albeit not necessarily -by capital-exporting States favoring a market-based system where investment, property rights and the rule of law are respected 2 comes to view with the latter traditionally spearheaded -but not automatically -by capital-importing States geared towards economic decolonization and the preservation of societal self-determination. 3 Put more simply, investment law is the shared surface upon which (and investment tribunals the arena where) the conflict about the level of protection we grant to foreign capital and hence how we conceive (and organize) the flux of capitals in a globalized economy is fought.…”

“…The former, usually embraced -albeit not necessarily -by capital-exporting States favoring a market-based system where investment, property rights and the rule of law are respected 2 comes to view with the latter traditionally spearheaded -but not automatically -by capital-importing States geared towards economic decolonization and the preservation of societal self-determination. 3 Put more simply, investment law is the shared surface upon which (and investment tribunals the arena where) the conflict about the level of protection we grant to foreign capital and hence how we conceive (and organize) the flux of capitals in a globalized economy is fought. This displacement of the abiding ideological wrangles in the area of investment protection result from the more general decision by world's actorsconscious and less conscious -to legalize certain aspects of world politics in the 20 th century.…”

“…This chapter does not discuss the role played by international customary law in the creation, interpretation and development of systemic (secondary) rules applied by investment lawapplying authorities. 8 7 After a few considerations on the early phase of development of international investment law and the search for a customary international protection of aliens (1), this chapter shows how the maturation of investment protection has been achieved through treatification and a move away from customary law (2). It then turns to the paradox of the theory of the sources of investment law and demonstrates how the completion of treatification through BITs generated a new return to customary international (3).…”

“…8 7 After a few considerations on the early phase of development of international investment law and the search for a customary international protection of aliens (1), this chapter shows how the maturation of investment protection has been achieved through treatification and a move away from customary law (2). It then turns to the paradox of the theory of the sources of investment law and demonstrates how the completion of treatification through BITs generated a new return to customary international (3). It subsequently ventures into a few general critical remarks about customary international law from the standpoint of the theory of the sources of international law (4).…”