Investment Treaties and the Legal Imagination

Abstract

Abstract Foreign investors have a privileged position under investment treaties. They enjoy strong rights, have no obligations, and can rely on a highly efficient enforcement mechanism: investor–state dispute settlement (ISDS). This extraordinary status has made international investment law one of the most controversial areas of the global economic order. Unsurprisingly, its origin and evolution have been the subject of a long debate. This book adds to the discussion by showing that foreign investor rights are not the result of unpredicted arbitral interpretations, but rather the likely outcome of a world-making project realized by a coalition of business leaders, bankers, and their lawyers in the 1950s and 1960s. Some initiatives that these norm entrepreneurs planned for did not concretize, such as a multilateral investment convention, but they were successful in developing a legal imagination that gradually occupied the space of international investment law. They sought not only to set up a dispute settlement mechanism but also to create a platform to ground their vision of foreign investment relations. Tracing their normative project from the post-World War II period, this book shows that the legal imagination of the norm entrepreneurs is remarkably similar to present ISDS practice. Common to both is what they protect—such as foreign investors’ legitimate expectations—as well as what they silence or make invisible. Our canon of imagination, of adjustment and potential reform, remains closely associated with the world-making project of the norm entrepreneurs of the 1950s and 1960s.

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