Perrone, Nicolas
(2013)
The international investment regime and foreign investors' rights: another view of a popular story.
PhD thesis, London School of Economics and Political Science.
Abstract
The international investment regime (IIR) has been subject to several criticisms since the mid-2000s. There have been many calls for recalibration and reconsideration of the purpose of this regime. In response, subsequent investment awards have shown changes in areas such as the degree of legal stability, deference, or emergency exceptions. However, the calls for rebalancing and reform have not ceased. In fact, they have recently gained new impetus. In the last years, most critical research has focused on investment arbitration. In this line of argument, apparently, the controversial issue is the remedy and not the substance of the rights. This thesis contributes to this debate from the premise that looking at the remedies only cannot suffice to address the social tensions that the IIR creates between foreign investors, host states and host communities.
Very limited attention has been devoted to the analysis of the potential effects international investment treaties may have on the very content of foreign investor's rights. By emphasising the procedural safeguards and guarantees international investment treaties provide, much of the legal debate implicitly overlooks whether or not investment tribunals are substantiating foreign investors' proprietary rights. this thesis addresses this gap in the literature examining the IIR as a legal regime that fulfils essential constitutional property functions: i.e. the substantiation and enforcement of proprietary rights. In case of an investment dispute, arbitrators very often define the measure of control that foreign investors enjoy over their assets. The content of foreign investors' rights depends on interpretation. The main argument of this thesis is that the interpretation of foreign investors' proprietary rights depends on the dominant justifications for foreign investment protection. As a result, contractualist and neo-utilitarian rationales constitute the basis to understand how investment tribunals substantiate foreign investors' rights over the resources of different countries.
Relying on this claim, this thesis examines the socio-relational effects of the IIR on host countries and local populations. It concludes that the challenge for this regime is to balance the excessive focus on wealth maximisation through foreign investment.
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