International Investment Law Through the Lens of Global Justice

Abstract

The last decade has witnessed a series of criticisms from states, NGOs, and scholars of international investment law’s rules and procedures. Running in parallel, and for a longer period, political philosophers have developed theories about what would constitute a just international economic order. Yet international law and philosophy have not directly engaged with one another regarding the justice of international investment law. This article attempts to breach that gap by analyzing the key critiques of investment law from the perspective of theories of global justice. Philosophical approaches are useful for appraising investment law because they offer a rigorous framework for thinking carefully about where investment law should be going; because rules that align with our sense of justice are more likely to be respected; and because these inquiries force lawyers to be more honest about the moral assumptions they already make in defending or attacking international investment law. Two of the main critiques of investment law—a systemic critique and a policy-space critique—are analyzed from the perspective of distributive justice. A third, institutional, critique is examined from perspectives within legal philosophy concerning procedural justice and the rule of law. The piece concludes with a series of suggestions for integrating the legal and philosophical discussions regarding investment law.

Keywords: International investment law, global justice, distributive justice, arbitration

JEL Classification: F02, F21, F53