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From Protection to Governance of Foreign Investment: Vulnerability Theory as a Paradigm Shift in International Investment Law

Published on December 27, 2019        Author:  and



The international investment law (IIL) regime is experiencing a series of paradigm shifts in light of ongoing backlash against its alleged lack of interest in public concerns. Increasingly, ‘external’ stakeholders such as NGOs, locals or indigenous peoples adversely affected by the activities of a foreign investor (or the excessive protection and incentives extended to a foreign investor by the host state) are therefore given a voice in arbitral disputes and the public debates surrounding them. While foreign investors virtually never have any international obligations pursuant to international investment agreements (IIAs), there is already a significant shift towards carve-outs, policy exceptions, and provisions safeguarding the regulatory powers of states against the (excessive) limitations imposed upon them by arbitral interpretations that disproportionately favor foreign investors. A plethora of discussions have touched upon the shape of such extra-legal (or extra-economic) considerations – such as human rights, environment, and sustainable development – that might come into play in order to transform IIL into a social justice regime, responsive and reflexive of the injustices suffered by all stakeholders (Baetens, 2013; Linarelli et al., 2018; Arcuri and Montanaro, 2018). Yet, no reform proposal has realistically advocated for a raison d’être shift in IIL.

This contribution seeks to add to the existing strand of scholarship by doing precisely that, via the application of Martha Fineman’s ‘vulnerability theory’ to the IIL context (Fineman, 2008; 2017). Specifically, it elaborates on the theory’s potential for solving some of the long-standing conundrums in IIL, such as its selective protection of certain subjects of law (foreign investors), its formalistic approach to equality embodied in the ‘sameness of treatment’ principle, and its unhelpful designation of interested ‘groups’. Read the rest of this entry…


Deep Seabed Mining in the Area: is international investment law relevant?

Published on July 10, 2019        Author: 

The last decade has seen a renewed interest in the commercial exploitation of deep seabed minerals located beyond national jurisdiction. However, the respective responsibilities of deep sea miners and of their sponsoring states in this process have not been clarified fully. This short piece argues that international investment law is part of the legal framework applicable to the relationship between the deep sea miner and the state sponsoring it. More specifically, it attempts to demonstrate that deep sea mining operations can constitute a foreign-owned investment within the territory of a host state. Thus, when accepting to sponsor deep sea mining activities, states need to be mindful of the additional disciplines imposed by international investment law. 

The seabed beyond national jurisdiction (named as the “Area” by UNCLOS) is known to contain valuable mineral resources including copper, nickel, zinc and rare earth metals which have become particularly valuable because of recent technological innovations. The International Seabed Authority has awarded twenty-nine exploration contracts to a variety of state and private corporate bodies for vast zones in the Pacific and Indian Oceans. Foreign capital has become increasingly involved in this economic activity. Thus, Nauru Ocean Resources, a Nauruan entity which was granted an exploration contract in 2011, is a subsidiary of the Australian corporation Deepgreen Mineral Corp. UK Seabed Mineral Resources is a subsidiary of the well-known Lockheed Martin. However these activities are controversial and there exist glaring gaps in the scientific knowledge of the ecosystems where deep sea mining is supposed to take place. Read the rest of this entry…

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International Arbitration: Heating Up or Under Pressure?

Published on March 11, 2014        Author: 

Dapo recently posted on this blog about the rise of inter-State cases before the PCA and predicted that “the current rise of inter-state arbitration will endure for some time“. Many readers will presumably be quite happy about the trend described: binding dispute resolution, if it happens, tends to make us international lawyers happy after all – so the more (cases) the merrier?

Interestingly, there is one branch of international law in which the debate currently seems take a different turn; in which the belief in binding dispute resolution is under attack – and in which many commentators, incl. many with an internationalist mindset and a keen desire for a rights-based global order, strongly feel that we have too much international arbitration. This is the field of investment law, in which the concept of investment arbitration has come under fire. Of course, this is an important debate for those interested in investment arbitration — academics, practitioners, companies, civil society, etc.  But, as importantly (if not more), it is also a debate that general international lawyers interested in dispute settlement should follow, and which I feel would benefit considerably if they did not leave it to the (pro- and anti-) investment communities. So this post is an attempt to introduce it to a wider audience and to encourage a wider debate. Within investment law, the debate has been going on for a while. However, over the past few months, it has suddenly heated up – and it has heated up in Europe, where the EU is formulating its investment policy. And this fresh start has opened up interesting spaces for debate. So what is it all about? Read the rest of this entry…