Mutations of Neo-Liberalism in International Investment Law

Abstract

Over the past few decades, international investment law has been increasingly used as an instrument for neo-liberalist ideals. However, inspite of the repeated failures of neoliberalism in international investment law, its adherents put forth new arguments and find new ways to augment these ideals, often cloaking old ideas in new forms in support of their ideals. In furtherance of this proposition, Part II of this article first discusses the four stages of international investment law, with particular focus on the third and fourth phases – neo-liberalism and normlessness. Part III of this article, after examining the arguments of recent investment law scholarship that absolute protection of foreign investments is a recent phenomenon, argues that such scholarship is a rehash of the ideals that had surfaced during the dominance of the neo-liberalism phase in international investment law. Part IV of this article illustrates and discusses how various states that are members of numerous investment treaties have reacted to the expansive interpretations of treaty provision by arbitrators. It also shows how states have reversed their earlier stances when their own interests were affected. As a counter to these neo-liberalist ideals, this article argues that international lawyers with a TWAIL perspective should confront and defeat these neo-liberal tenets in the interests of the third world. Further, the developing countries as a whole, should put forth a collective stand and be united in their opposition to investment treaties which would otherwise engender them to surrender their control over their natural resources.