Volume 15, Issue 1 -

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.

There is still controversy regarding what criterion to use to evaluate causality. The law & economics literature proposes the use of probabilistic causality as a superior criterion, suggesting the elimination of binary causality criteria. This led to explanations that violate our intuitions, fail to explain judicial decision-making, and are considered unjust. This paper proposes that neither binary nor probabilistic causality can provide a satisfactory answer for all scenarios. Probabilistic causality works well for general causal claims (types of claims centrally involved in rulemaking) while binary criteria perform better for single causal claims (types of claims commonly addressed by courts).

In development approaches, the link between rule of law institutional reforms and economic development is theorized by neo-institutional economics (NIE). From an economic analysis of law, NIE interprets the institutional variable through its ability to reduce uncertainty. The analysis of the relationship between institutions and development then leads to the study of institutional and normative changes. In this context, authors are referring to path dependence theory in order to explain the recurrent failure of rule of law reforms. However, I will argue that while NIE, by referring to path dependence theory, acknowledges that reforms take place within a complex set of particularities, I suggest that the notion of multijuralism, elaborated by the French legal anthropologist Étienne Le Roy, is more appropriated to describe this set of particularities in an African context. Using empirical data collected during an anthropological study regarding women’s rights in Democratic Republic of Congo, we will see that normative changes usually occur on the margins of State institutions. In addition, the embedded norms considered by NIE immobile through time are actually much more fluid than it seems.

The article analyzes the controversy between Argentina and the Spanish corporation Repsol, arisen from the expropriation in 2012 of the latter’s shares in the local oil company YPF. From the standpoint of the international law on foreign investment, two issues are considered. Firstly, whether this taking fulfilled the requirements acknowledged as international standard for a valid expropriation, as well as the conditions laid out in the Bilateral Investment Treaty between Argentina and Spain. Secondly, the shifting process of dispute settlement, represented as an interaction between negotiation and arbitration, which finally led to a mutually accepted agreement.