The International Investment Regime and Foreign Investor Rights: Another View of A Popular Story

Abstract

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 controversial issues for them and not the scope of foreign investor rights. The authority of foreign investors and host states, however, varies according to the way in which investment tribunals interpret the individual rights at stake. Following this legal realist lesson, this article proposes that property law and theory can serve to illuminate the existing struggle around the IIR. Property is a plural concept which specification depends on the comprehensive view that arbitrators follow when deciding a dispute. In this regard, this article concludes that our understanding of the IIR could benefit from further exploring the interpretation of foreign investor rights.