Abstract
This article makes the claim that the present efforts to reform the international investment regime (IIR) will not save this field from the existing criticisms. Given the plural values at issue, it is unlikely that states – let alone local populations – will ever reach a consensus on the substantive questions surrounding foreign investment. Historically, the main characteristic of foreign investment governance has been the lack of multilateral consensus. This field remained dominated by diplomacy and customary international law until bilateral treaties and investment arbitration became the leading mechanism to resolve investment disputes in the 1990s. This highly legalized regime, however, has been subject to criticisms from developing and increasingly from developed countries. Most reform proposals fail to go beyond alternatives that have been unsuccessful in the past, such as a multilateral investment agreement (MIA) or state-to-state arbitration. This article takes a different approach to foreign investment governance, starting from its political economy. It claims that the IIR does not depoliticize foreign investment relations but rather promotes the politics of foreign investors’ property rights protection. Relying on property theory and pluralism as heuristic tools, this article analyses the resistance to investment arbitration, the obstacles to multilateral cooperation, and the possibility of an overlapping consensus on the institutions for foreign investment governance.
Acknowledgements
The author is grateful to Lauge Poulsen Skovgaard, Alexis Galán, and an anonymous reviewer for their comments. As always, all errors remain those of the author only.
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Articles in the same Issue
- Frontmatter
- The Governance of Foreign Investment at a Crossroad: Is an Overlapping Consensus the Way Forward?
- The Limits of Probabilistic Causality in Law
- Rule of Law Reforms and Institutional Change Processes in Eastern DR Congo: Neo-institutional Economics vs Multijuralism
- Expropriation and the Settlement of Investment Disputes: An Account of the Controversy between Repsol and Argentina
Articles in the same Issue
- Frontmatter
- The Governance of Foreign Investment at a Crossroad: Is an Overlapping Consensus the Way Forward?
- The Limits of Probabilistic Causality in Law
- Rule of Law Reforms and Institutional Change Processes in Eastern DR Congo: Neo-institutional Economics vs Multijuralism
- Expropriation and the Settlement of Investment Disputes: An Account of the Controversy between Repsol and Argentina