The Governance of Foreign Investment at a Crossroad: Is an Overlapping Consensus the Way Forward?
Global Jurist 2015, Forthcoming
30 Pages Posted: 26 Oct 2014
Date Written: October 24, 2014
This article makes the claim that the present efforts to reform the international investment regime will not save this field from the existing criticism. Given the plural values at issue, it is unlikely that states — let alone local populations — will ever reach a consensus on the substantive questions surrounding foreign investment. Historically, the main characteristic of foreign investment governance has in fact been the lack of multilateral consensus. This field remained dominated by diplomacy and customary international law until bilateral treaties and investment arbitration consolidated as the leading mechanism to resolve investment disputes in the 1990s. This highly legalised regime, however, has been subject to criticism from developing and now increasingly from developed countries. Most reform proposals yet fail to go beyond alternatives that have been unsuccessful in the past, such a multilateral investment agreement or state-to-state arbitration. This article takes a different approach to foreign investment governance starting from its political economy. It claims that the international investment regime does not depoliticise foreign investment relations but rather promotes the politics of foreign investors’ private property protection. Relying on property theory and pluralism as heuristic tools, this article analyses the resistance to investment arbitration, the obstacles to multilateral cooperation, and the possibility of an overlapping consensus on the basic institutions to govern foreign investment.
Suggested Citation: Suggested Citation