21st Century Investment Agreements: Justice, Governance and the Rule of Law

6 Pages Posted: 24 May 2016

Date Written: May 20, 2016

Abstract

Investment treaty law can no longer be managed as if it were merely a system of private ordering setting out the protected rights of capital owners. This philosophy has contributed to the ongoing legitimacy crisis affecting investment law today, including the TPP and TTIP negotiations. In response to a similar legitimacy crisis in the 1990s, the international trade system began a profound paradigm shift, recognizing that trade law was not simply a technical regime for liberalizing economic flows, but a system of treaty-based governance for managing transnational economic resources for the good of society as a whole.

Investment law has today reached the same point, and a similar paradigm shift is the key to successful resolution of the legitimacy crisis facing international investment. The international investment regime certainly involves private actors with valid and important interests, but it is not solely about private actor rights — it is also about state responsibilities to the larger society. International investment agreements (IIAs) are instruments of economic governance, by their nature subject to principles of procedural and distributive justice, as with any system that allocates social resources.

Suggested Citation

Garcia, Frank Joseph, 21st Century Investment Agreements: Justice, Governance and the Rule of Law (May 20, 2016). Forthcoming in Pontes (ICTSD); Boston College Law School Legal Studies Research Paper No. 397. Available at SSRN: https://ssrn.com/abstract=2783373

Frank Joseph Garcia (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

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