‘Writing the Rules of the Global Economy’: How America Defines the Contours of International Investment Law
London Review of International Law (Forthcoming)
20 Pages Posted: 18 Sep 2018
Date Written: September 11, 2018
Some characterize the standards of protection promoted by investment treaty law as a form of denationalized law. International investment law, it is said, is comprised of generic rules, representing norms of global good governance, and not those of any particular state. This paper argues that investment treaty standards exemplify, in Bourdieu’s terms, the fictitious universalization of the particular case. This is revealed in debates over conferring upon President Obama trade promotion authority to negotiate new mega-regional treaties, like the Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP). Disagreement turned, in large part, on the degree to which commitments to foreign investors corresponded to rights found in the US Bill of Rights. Both sides were preoccupied with the question of whether standards for investor protection in mega-regionals looked sufficiently like US constitutional law. By evaluating the strictures of investment treaty protections and US constitutional rights, the paper generates evidence that investor protections, while resembling those rights, surpass them by a considerable distance. So long as the origins of the content of investment treaty commitments remain misrecognized, US political actors will continue hold a monopoly in determining the content of the universal.
Keywords: investment law; universality; Bourdieu
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