Masters and Guardians of International Investment Law: How to Play the Game of Reassertion

Abstract

Any discussion of reassertion of control by Contracting Parties over international investment law must proceed on the basis of certain assumptions about the nature of the legal order within which it takes place. The intellectual framework for this chapter is provided by the mainstream view of public international law, described by James Crawford in the following terms: It goes without saying – but may go even better by being said – that international law is not the only frame of reference for discussion of international investment matters, nor is it necessarily a better frame than others. Much valuable work in the field is done by scholars with a background in international commercial arbitration, international commercial litigation and domestic public law; by scholars of critical-theoretical or inter-disciplinary persuasions; and by economists and political scientists. But the perspective of public international law, articulated with appropriate modesty and with no necessary claim to greater legitimacy, can at the very least usefully complement these voices. International investment law is public international law. There is nothing conceptually different, innovatory or sui generis about it.