The Global Regime of Investor Rights: Return to the Standards of Civilised Justice?
Transnational Legal Theory 2014 (forthcoming)
20 Pages Posted: 2 Feb 2014
Date Written: January 31, 2014
The capital-exporting states of the North Atlantic long insisted that the standards of civilised justice mandated that capital importing states respect the property rights of their nationals engaged in commercial enterprise abroad. Only a single North Atlantic conception of civilisation qualified to provide content for a purported international standard, even when that content was contested by capital-importing states from Latin America and elsewhere. The construction of a new global legal regime for the promotion and protection of foreign investment, it often is said, has rendered that debate redundant. The content of minimum standards required by international law has been superseded by a world-wide web of some 2700 bilateral and regional investment treaties. The meaning to be attributed to the standards of protection contained in these treaties, however, remain hotly contested by states from the global South. In an attempt to resolve disputes over the content of international law standards, scholars are having resort to familiar arguments about the law of economically powerful states of the global North as being determinative. In so doing, promoters of international investment law aim to universalize a particular version of the law of the North to the exclusion of alternative formulations of state-market relations. This paper aims to uncover the scholarly means by which economically powerful interests gain privileged access to defining the content of what comes to be labeled ‘universal’ and so determine the legal framework of power in the global political economy.
Keywords: civilisation, general principles, international investment law, comparative public law
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