In this chapter, Eric De Brabandere zeroes in on the settlement of disputes in the context of investment arbitration. This chapter accepts that the case law of the current investor-State dispute settlement system is inconsistent and unpredictable and requires reform. However, this chapter claims that the problems associated with the dispute settlement system for investment arbitration cannot be isolated from broader questions on the coherence of general international law, the determinacy of legal norms, and the role of arbitral tribunals in the interpretation of these norms. The chapter argues that coherence is a matter of degrees and that a ‘middle ground’ might be to consider that international investment law forms part of international law, which is a coherent legal system from the perspective of the sources or the secondary norms of international law. Consistency, on the other hand, is not completely achievable in the current investment landscape, given its lack of uniformity in terms of substantive law and ad hoc method of dispute settlement. Consistency must be sought through different options, such as redrafting investment treaties to ensure better balance and predictability of outcomes.

In this chapter, Tarcisio Gazzini and Alessandra Pietrobon focus on parallel proceedings in investment and human rights claims. This chapter examines how tribunals co-ordinate the exercise of their jurisdictions, how they should deal with the merits (including applicable law and issues of interpretation), and how they should avoid double recovery. The complex disputes related to Yukos are discussed with a view to formulating some tentative recommendations on how to manage parallel proceedings before the European Court of Human Rights and investment arbitral tribunals.

This chapter looks at reciprocity in the jurisdiction of international courts and tribunals, and the differences in the role reciprocity plays in inter-State dispute settlement, and in dispute settlement procedures that involve non-State entities such as individuals. It looks at the well-developed role that reciprocity plays in the jurisdiction of the International Court of Justice, before turning to the system of compulsory dispute settlement in the United Nations Convention on the Law of the Sea (UNCLOS). The chapter then analyzes three types of instance which concern individuals: the International Criminal Court; human rights courts and complaint mechanisms; and investment tribunals, specifically the issue of the extension of jurisdiction on the basis of an MFN clause.

Did colonialism end with decolonization? This chapter identifies threads of discursive continuity between historic colonialism and the contemporary regime for the protection of foreign investment. Those threads concern a single-minded focus on profitability and privilege, the claim that domination produces economic improvement, a prevailing distrust of local self-rule and the construction of enclaves that preserve legal entitlements for privileged classes of foreigners. Each of these features, found in colonial forms of argumentation documented by Albert Memmi and Frantz Fanon, among others, are inscribed in the discourse and practices of investment treaty law and arbitration.

This chapter resurrects notions of empire, associated with colonial and neo-colonial relations of the nineteenth and twentieth centuries, with international investment law. Affinities with imperial legal forms are highlighted, drawing upon Mohammad Bedjaoui’s book-length intervention in support of the New International Economic Order. The chapter invokes the distinction between ‘formal’ and ‘informal’ empire and postulates that contemporary investment law exhibits affinities with informal empire but also reveals aspects of formal empire. The chapter highlights how contemporary legal rule constrains political capacity in the periphery as did imperial rule via formal and informal means. By interrogating investment law through the lens of empire, this chapter aims to reconnect law to politics in an age when imperial forms continue to proliferate.

By way of conclusion, the question is posed whether the investment treaty regime is capable of being liberated from its discredited ancestry in justifications that supported colonialism, imperialism, civilization, debt and orthodox development. Powerful discourses, such as ones underpinning the investment law regime, succeed and endure to the extent that they inhibit alternative accounts. Why should those proffering alternative readings be ignored or silenced when, cumulatively, the effects of this regime are everyday being made material? These discursive strategies are successful only in so far as citizens and states of the Global North insist on continuing to write the rules of the game, facilitating silence of the subjugated and refusing to acknowledge that the marginalized deserve a hearing via a genuine exchange that can form, per Quijano, the ‘basis of another rationality which may legitimately pretend to some universality’. Such a hearing must take place far away from the rarefied confines of conference rooms where investment claims are pursued or the corridors of power where international diplomacy exerts its force.

The principal argument of this chapter is that the legal security provided to foreign investors by investment law exhibits features characteristic of the legal hegemony achieved by colonial settlers over Indigenous peoples. If colonial power authorized settlers to displace Indigenous communities, contemporary legal relations appear to reinscribe a similar disregard for Indigenous rights and title. Not only does investment law exhibit indifference but investment arbitration reveals complicity in violating rights. This is exhibited by investment tribunal disinterest in penalizing investors for the exacerbation of, and responsibility for, inter-societal conflict that leads to dispossession, violence and even death. A sampling of cases reveals that tribunals prefer not to reject investor claims, or reduce damage awards, in circumstances where investors have been implicated in this maltreatment and subjugation of Indigenous peoples. What is revealed is that international protections for metropolitan-based entrepreneurs consolidate victories secured by the internal colonialism of Indigenous peoples in the Americas.

This chapter imagines how proposals, aimed at facilitating the divestiture and exit of foreign investors, might have offered an alternative to problems that purport to be solved by international investment law. There is not much talk of alternatives as they have been banished by the discursive and material power of investment law. Displaced are fifty-year-old proposals aimed at facilitating the divestiture and exit of foreign investors that were introduced by Argentinian economist Raul Prebisch and elaborated upon by US-based economist Albert Hirschman. The chapter begins with a discussion of what is labelled constitutional dispossession, before turning to a discussion of the Prebisch–Hirschman proposal. An examination of this past yields fruitful insights into how we can generate substitutes for investment law, particularly as investment law’s foundations are being tested, even weakened, in some locales. The advantages of the divestment proposal are then identified and applied to the award in Bear Creek v. Peru, a dispute prompted by the revocation of a mining licence granted to a Canadian investor to which Aymara Indigenous communities in Peru were vociferously opposed. The object is to reimagine the status quo and reflect upon the prospects of far-reaching change.

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.

This book interrogates justifications, techniques and legal forms that arose in the past and continue to resonate in the international regime to protect foreign investment. What is striking is how past practices resemble suppositions relied upon at present by investment law’s norm entrepreneurs. This matrix of practices is characterized as ‘alibis’ in so far as they provide cover for a set of international investment law rules and institutions that are increasingly difficult to defend. The method employed conjoins discursive practices with understandings about power, expressed in legal-institutional and processual forms. It is analogous to what Foucault describes as ‘archaeology’ which, when partnered with ‘genealogy,’ produces something akin to dispositif: an ensemble of discourse, institutions, legislation and ‘authoritative phenomena’, incorporating ‘the said as much as the unsaid’. By uncovering investment law’s normative ends, and connecting them to this indefensible past, the book reveals how investment law aims to dampen the political aspirations of states and citizens of the Global South. The object of the book is to imagine new ways forward that are less ruinous to those left outside of investment law’s solicitude.

This chapter provides some concrete suggestions for how democracies should proceed in the so-called post-liberal era. The future of prodemocratic international law will depend on democracies leveraging collateral areas of international law to advance liberalism. This involves an essentially defensive liberalism.