Legal Innovation in Investment Law: Rhetoric and Practice in the South
University of Pennsylvania Journal of International Law (Forthcoming)
50 Pages Posted: 17 Mar 2017 Last revised: 20 Apr 2017
Date Written: March 16, 2017
We are entering a new era in international investment law in which emerging countries are taking an increasingly important role and the field is undergoing substantial change. While voices from emerging countries are becoming more and more significant, and their views have found some echoes in developing countries, the literature has paid too little attention to these developments. This article helps fill this gap. It explores the new discourse of South-South cooperation which serves as a driver for efforts by emerging countries to revisit investment regulation. It investigates how the desire for more cooperation and policy flexibility translate into legal instruments that shift the balance of investor and host-state rights and obligations. It analyzes legal positions and proposals from the global South for investor-state dispute settlement and assesses prospects for the investment regime in light of resistance in the South to the status quo, similar critiques from the North, and the collapse of TTP and TTIP. With opposition to the BITs regime developing in both the North and the South, it may be that a broader global shift is underway that could lead to new standards of foreign investment regulation. By providing detailed insights on the issues of concern to most developing countries and many in developed countries, the article will help set the stage for the next era of international investment law-making.
Keywords: regional trade agreements, international investment law, global south, policy space, european union, united states, investment, investor-state dispute settlement, emerging economies, developing countries, bilateral investment treaty
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