A Case for Ethnography of International Investment Law
Forthcoming, Deplano, Gentile, Lonardo (eds.), Pluralising International Legal Scholarship: the Promise and Perils of Non-Doctrinal Research Methods (Edward Elgar)
24 Pages Posted: 17 May 2019
Date Written: April 17, 2019
In this chapter, I make two claims; one general and one specific. First, I argue that the rise in socio-legal methods (in all their variety) brings important insights for international lawyers and their practice. The rise of non-doctrinal approaches may lead international lawyers to be more circumspect about their universalist and often sweeping normative solutions. It also brings much needed reflection into the profession of international law, which generally views itself as cosmopolitan and universalist, and as promoting seemingly incontestable virtues such as peace and justice. Second, I argue that ethnographic research inspired by social anthropology may bring important insights particularly in the contested and controversial fields of international law such as international investment law (IIL). Ethnographic research asks how IIL influences and impacts on the lived experiences of affected actors. Such research requires assessing international investment agreements (IIAs) in a context of a particular state or community. This type of research requires looking at how IIL influences and impacts on government practices, policies and discourses. It must take into account the structure and power dynamics of the government and public administration; it requires assessing the awareness of important government and non-government actors; it should assess the political narratives associated with the foreign investment and its regulation in the country; last but not least, it should assess the media, public debate, and civil society mobilisation on the issue.
Drawing on a comparative large-scale research project, the chapter argues that a method particularly apt to answer such questions is the extended case method – which includes participant observation, interviews, discourse and content analysis of official documents and media, and archival work. Ethnographic research may help us understand what actors these treaties empower and constrain, and how they are used in political contestation and national governance writ large. As it brings into light discrepancies between normative prescriptions and actual practices, such research enhances our understanding of what international investment law induces beyond its immediate and obvious legal effects.
Keywords: international investment law, socio-legal studies, global governance, governance, international economic law, investment arbitration, ethnography
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