Progressive Counteragent to Slanted Neoliberalism of International Investment Law for National and Regional Legal Order
Onyeka Osuji
Law School - Faculty of Humanities - University of Essex - UK
Abstract
Neoliberalism is arguably the dominant paradigm in international investment law with dispute resolution undertaken mostly through investor consent-based arbitration, mostly with the International Centre for Investment Disputes (Osuji and Taiwo, forthcoming). International investment law apparently proceeds on the basis of the need to protect foreign investors from host governments and therefore primarily imposes obligations on state parties. Furthermore, an arbitral tribunal provides an accountability mechanism for those obligations with the result that foreign investors or their home governments are normally claimants against governments of host countries. An apparent presumption is that foreign investors are often from certain more developed nations operating in mostly developing countries. Nonetheless, there are a number of emergent challenges to the fundamental assumptions of international investment law. First, corporations have emerged as powerful global and socio-political actors leading to changes to the state-investor power dynamics. Secondly, the flow of foreign investments is undergoing changes, especially with the emergence of developing economies’ multinational enterprises which increasingly invest and operate in both developing and developed economies. Thirdly, there is increasing realisation of the need for regional approaches to investment law which is coupled with the desire to design and implement context-specific rules and procedures. This has recently been acknowledged by the European Court of Justice in confirming the validity of the Investment Court System provisions of the European Union and Canada’s Comprehensive Economic and Trade Agreement and further exemplified by the draft Pan African Investment Code 2016 (PAIC) which contains sustainable development, human rights, labour standards, corporate social responsibility and other obligations for investors. As UNCTAD Investment Policy Framework on Sustainable Development 2015 suggests, a ‘new generation of investment policies’ seems to have emerged. This paper consequently proposes a progressive approach that challenges the slanted neoliberalism of contemporary international investment law to promote an effective balancing of investment and sustainable development needs within national and regional legal orders. The first component of the proposed approach is the need to explicitly recognise and promote the inter-connectedness of international investment law to other areas of law and matters of global or local concern. Insights from the New Regionalism Approach are particularly helpful here. Second is the provision of investor obligations in international investment agreements to suit the contextual circumstances of the country and the sector of the business, an approach PAIC appears to follow albeit in a limited way. Third is the provision of the right of state parties through designated public agencies to enforce investor obligations and other aspects of investment agreements in specified tribunals. Fourth is the recognition of non-contractual arbitration, which is particularly relevant to regional or multilateral investment or trade agreements. As a corollary, the fifth is the need for regional investment treaties or codes to reflect a context-specific incorporation or adaptation of the other components.
Keywords
Arbitration, ICSID, International investment law, International trade, Neoliberalism
