The ‘no greater rights’ principle: heading to a new Calvo Clause?

Abstract

Abstract Recently, the very developed countries that championed the spread of international investment agreements began to challenge these treaties on the grounds that they afford foreign investors with greater rights vis-à-vis domestic investors and thus violate the constitutional principle of equality. This represented, under the banner of the ‘no greater rights’ principle, the resurgence of a once fiercely opposed doctrine of international law that originated in Latin America during the XIX century: The Calvo Doctrine. This contribution seeks to establish the actual breadth and significance of this new Calvo Doctrine. It concludes that the ‘no greater rights’ has a political, rather than a legal meaning, and is thus generally unsuitable to assure the desired equality between foreign and domestic investors. It also reveals that a recent decision of the Colombian Constitutional Court may give the ‘no greater rights’ a new (more real) meaning, by reviving a forgotten by-product of the Calvo Doctrine, the Calvo Clause.