3 - The Decline and Rise of Standards of Civilized Justice

Summary

The capital-exporting states of the North Atlantic long insisted that the standards of civilised justice mandated that capital-importing states respect the property rights of their nationals engaged in commercial enterprise abroad. Only a single North Atlantic conception of civilisation qualified to provide content for this purported international standard, even as that content was contested by capital-importing states from the Global South. This chapter turns to a methodology that is dominant in investment law scholarship that operates to produce an outcome functionally equivalent to the standards of civilized justice. International investment lawyers and scholars, it is argued, deploy simplistic comparative methodologies that reproduce historic domination by powerful capital-exporting states. The choice of country models is highly selective and productively so. By preferring to conscript the easily retrievable law of the Global North into general principles of international law, scholars reinforce extant power relations rather than realigning them in new directions.