Protecting Concessionary Rights: General Principles and the Making of International Investment Law

Abstract

This article engages with the history of international investment law in the first half of the 20th century. It traces how British international lawyers and economists inscribed their vision of an international legal order protecting private property of Western companies against attempts at nationalisation in the wake of socialist revolutions and the decolonisation of large parts of the world. The article focuses on the role of ‘general principles of law as recognized by civilized nations’ as building blocks for an international legal order today called international investment law. Based on the analysis of arbitrations over disputes resulting from concession agreements and scholarly writings in the interwar period, this contribution draws out the modes of authorisation upon which these invocations rested. At the heart of the vision were ideas of ‘modernity’ ‘civilisation’ ‘equity’ and ‘justice’ that enabled a temporalization of difference, locating Western claims to legality above rivalling claims of socialist and ‘newly independent’ states. These ideas ultimately constituted the paradox of a ‘modern law of nature’ that claimed timeless universality while authorising the ordering of foreign property in line with Western conceptions of modernity.

Keywords: Concession agreements, general principles, arbitration, civilisation, development

JEL Classification: K33, N10, 020