Foreign investors have a privileged position under investment treaties, enjoying strong rights, no obligations, and the ability to 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.
In the recently published book Investment Treaties and the Legal Imagination, Nicolás M. Perrone examines the origins and evolution of the legal thinking underpinning the investment treaty regime and ISDS practice. He shows that our canon of imagination relating to adjustment and potential reform of ISDS, remains closely associated with the world-making project of a coalition of business leaders, financiers and lawyers who promoted international investment protection in the 1950s and 1960s. Common to both is what they protect—such as foreign investors’ legitimate expectations—as well as what they silence or make invisible. In recent years, there is increasing consensus that silenced topics and invisibilized actors should be part of this regime if it is to be recentered as a sustainable development field. We must shift the focus from investments to social relations. How to make this happen, however, remains an open question. A distinguished panel discussed with the author the implications of these findings for the future of international investment law.
Jorge Contesse, Associate Professor of Law & Director, Center for Transnational Law, Rutgers Law School
Brooke Guven, Senior Legal Researcher, Columbia Center on Sustainable Development
Kathleen Claussen, Associate Professor, University of Miami School of Law
Mélida Hodgson, Partner and Head of International Arbitration in New York, Jenner & Block LLP