The (mis)use of development in international investment law: understanding the jurist’s limits to work with development issues

Abstract

AbstractThe decolonization period was characterized by the adoption of investment protection agreements with the objective of serving the purposes of both transnational corporations and newly decolonized States. These agreements are primarily meant to protect private international investments and, incidentally, they have been presented as instruments of development: protecting international investments to foster development. Many newly decolonized States signed and ratified such treaties with the aim of attracting foreign investors – but also to maintain existing ones; what was expected in return was a contribution to their development. This article studies the legal relationship which consequently exists between international investment law and development, but at the same time, it highlights the flagrant misuse of the concept of development in practice. In this law field, both the Global North and the Global South tend to envision development in a way which is deprived of all technical and scientific grounds. The paper firstly explains how the objective of development, rooted in such investment agreements, acquired a legal function. Bilateral investment agreements were a means to forge newly decolonized States’ expectations and belief concerning the paramount necessity to protect foreign investments so as to benefit in terms of development. In the international investment legal practice, the contribution to the host State’s development by the foreign investor has been frequently used as a criterion to identify an investment: to be protected by an investment agreement any activity must necessarily be identified as an investment. As the latter knows no definition some tribunals have considered that one of the criteria to identify an investment is a contribution to the development of the host State by the potential investor. Theoretically, this seems to consider the interests of developing States in their relationship with transnational corporations. However, and this is the second point, development has itself never really been defined – and still is not in this law field. It is hence used and applied as an undefined concept. Development is in fact referred to as an image, as a symbol, but never in its technical aspects. Accordingly, such reference made to the concept of development in international investment law is far from convincing and forges skepticism on its intrinsic necessity and use. In this vein, it raises the thorny question of the jurist’s technical competence to assess what development is and how it can – technically – be used in law.