Backlash and State Strategies in International Investment Law

PluriCourts Research Paper No. 15-12

T. Gammeltoft-Hansen and T. Aalberts (eds.), The Changing Practices of International Law: Sovereignty, Law and Politics in a Globalising World, Cambridge University Press, 2017, Forthcoming

29 Pages Posted: 17 Dec 2015 Last revised: 31 May 2017

See all articles by Malcolm Langford

Malcolm Langford

University of Oslo, Faculty of Law, Department of Public and International Law

Daniel Behn

PluriCourts, University of Oslo; University of Liverpool

Ole Kristian Fauchald

Fridtjof Nansen Institute; Department of Public and International Law

Date Written: May 30, 2017

Abstract

The development of the modern investment treaty regime represents a remarkable extension of international law in the post-war period. However, the development of this regime has precipitated a backlash from some states, various civil society actors, and scholars over the past decade. For all intents and purposes, it appears that the central (underlying) reason for the backlash is one right: the procedural right granted to foreign investors allowing them to bring claims directly against the state hosting their investment. Many of these investment treaty arbitrations (ITAs) have resulted in sizable compensation awards for actions that many states believe are both legitimate and within their exclusive purview as sovereigns. This tension between the rights afforded to private foreign investors under international treaties and the legitimate rights of sovereign states to regulate in the public interest of their domestic citizenry has culminated in efforts by states to weaken the regime. This chapter examines the strategies and tactics that states are employing to scale back the unintended consequences of the international investment regime while simultaneously claiming adherence to its international legal obligations.

Keywords: Legitimacy, Investment Treaty Arbitration, International Investment Regime

Suggested Citation

Langford, Malcolm and Behn, Daniel and Fauchald, Ole Kristian, Backlash and State Strategies in International Investment Law (May 30, 2017). T. Gammeltoft-Hansen and T. Aalberts (eds.), The Changing Practices of International Law: Sovereignty, Law and Politics in a Globalising World, Cambridge University Press, 2017, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2704344 or http://dx.doi.org/10.2139/ssrn.2704344

Malcolm Langford

University of Oslo, Faculty of Law, Department of Public and International Law ( email )

P.O. Box 6706 St. Olavs plass
N-0130 Oslo
Norway

Daniel Behn (Contact Author)

PluriCourts, University of Oslo ( email )

P.O. Box 6706, St. Olavs Plass 5
Oslo, 0130
Norway

University of Liverpool ( email )

Brownlow Hill
Liverpool, L69 3BX
United Kingdom

Ole Kristian Fauchald

Fridtjof Nansen Institute ( email )

P.O. Box 326
Lysaker N-1326
Norway

Department of Public and International Law ( email )

PO Box 6706 St Olavsplass
Oslo, 0130
Norway

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