Foreign Investment

Abstract

This chapter critiques the international law on foreign investment as not properly reflecting considerations of justice and too focused on fallacious notions of improving economic conditions in countries through ultra-high levels of private property protection for foreign investors. It explores how the focus mainly on protecting the investor, with levels of protection even domestic capital do not enjoy, has its origins in a historical progression from an imperial international law imposed in eras of empire and colonialization. It explores how the international law on foreign investment continues to suffer from these normative deficiencies. It offers a review of how the New International Economic Order was a movement by the Latin American, African, and Asian states to make the international law on foreign investment more universally acceptable but how that movement was circumvented with the rise of neoliberalism beginning in the early 1990s despite opposition by these states. Building on Chapter 3, it then deals with the decline of the NIEO and its relationship to the international law on foreign investment. The chapter goes through how investment law and the tribunal jurisprudence that contributes to its development expanded investor protections to produce injustice. It discusses the resistance to the law that has come about, the ongoing changes in investment treaties because of concerns with their imbalances, and the nature of the legitimacy crisis the law now faces.