International Investment Law's Unending Legitimation Project

Abstract

Legitimacy problems continue to dog investment law, despite modest efforts at bridging its legitimacy gap. Drawing upon lectures by nineteenth century historian François Guizot, this paper argues that legitimacy problems do not simply dissipate over time. Securing and maintaining legitimacy, instead, requires continuous work. This paper takes up a justificatory frame for determining how well investment law is succeeding in securing legitimacy. As Guizot describes it, representatives invested with power on behalf of a majority must continually seek to justify their authority. Because rulers are fallible, exercises of authority must be open, public and subject to endless questioning. The subsequent parts of the paper evaluate strategies that have been taken up by states and by arbitrators in light of this legitimacy frame. The paper asks whether these strategies offer up a means by which citizens can learn about, embrace or resist the regime’s dictates of what is in the common interest. It is suggested that the state and arbitral strategies under discussion fall far short of this mark. More drastic reforms need to be entertained, many of which will be anathema to investment law’s norm entrepreneurs.