The Private Law Critique of International Investment Law

Abstract

International investment law goes further in disciplining states’ internal policy space than is commonly understood. This Article argues that investment treaties subtly constrain how nations organize their internal systems of private law – including laws of property, contracts, corporations, and IP. Problematically, they do so on a one-size-fits-all model, disregarding the wide variation in values reflected in these discrete legal institutions. Moreover, investor-state dispute settlement exacerbates these constraints, further distorting national private law arrangements. This hidden aspect of the system produces distinct problems of inefficiency, unfairness, and inequitable distribution that have eluded the regime’s critics and apologists alike.

Keywords: International Law, International Investment Law, Contracts, Property, Corporations, IP

JEL Classification: K11, K12, K20, K33, F21, F23, F53, F55