Texte intégral

• UNCITRAL, ‘Report of the United Nations Commission on International Trade Law on the Work of Its Fiftieth Session’ (New York, 3–21 July 2017) UN Doc A/72/17, para 264; UNCITRAL, ‘Report of Working Group III (Investor-State Dispute Settlement Reform) on the Work of Its Thirty-Fourth Session (Vienna, 27 November–1 December 2017)’ (19 December 2017) UN Doc A/CN.9/930/Rev.1.
• See Antonio R Parra, ‘The 2022 Amendments of the Regulations and Rules of International Centre for Settlement of Investment Disputes: Change and Continuity’ (2022) 23 JWIT 717.
• See Susan D Franck, ‘The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions’ (2005) 73 Fordham LR 1521; Charles N Brower and Stephan W Schill, ‘Is Arbitration a Threat or a Boon to the Legitimacy of International Investment Law?’ (2009) 9 Chi J Intl L 473; Malcolm Langford, Cosette Creamer and Daniel Behn, ‘Regime Responsiveness in International Economic Disputes’ in Szilárd Gáspár-Szilágyi, Daniel Behn and Malcolm Langford (eds), Adjudicating Trade and Investment Disputes:Convergence or Divergence? (CUP 2020) 244.
• See M Sornarajah, Resistance and Change in the International Law on Foreign Investment (CUP 2015) 99–400.
• See M Sornarajah, The International Law of Foreign Investment (5th edn, CUP 2021) chs 9–11; Rudolf Dolzer, Ursula Kriebaum and Christoph Schreuer, Priniciples of International Investment Law (3rd edn, OUP, 2022) chs VII–VIII.
• See Anthea Roberts, ‘Incremental, Systemic, and Paradigmatic Reform of Investor-State Arbitration’ (2018) 112 AJIL 410; Taylor St John, The Rise of Investor-State Arbitration: Politics, Law, and Unintended Consequences (OUP 2018) ch 8.
• See Georgios Dimitropoulos, ‘The Conditions for Reform: A Typology of “Backlash” and Lessons for Reform in International Investment Law and Arbitration’ (2019) 18 LPICT 416.
• Jane Kelsey and Kinda Mohamedieh, ‘UNCITRAL Fiddles while Countries Burn’ (World Network & Friedrich Ebert Stiftung Study, September 2021) accessed 27 July 2023.
• See ICSID Arbitration Rules (as amended effective July 2022) reprinted in Doc/ICSID/ 15/Rev 3 (July 2022) (2022 ICSID Arbitration Rules); ICSID Conciliation Rules (as amended effective July 2022) reprinted in Doc ICSID/15/Rev 3 (July 2022) (2022 ICSID Conciliation Rules).
• UNCITRAL, ‘Commission Report, 50th Session’ (n 1) para 264.
• For more on the potential conflicts between the parties’ choice of law and the obligation to apply the chosen law, see Dominic Npoanlari Dagbanja, ‘The Scope and Legal Effect of Choice of Law in International Arbitration’ (2019) 4 CLR 59, 85–92 . See also Melanie Foley, ‘Recommendations for UNCITRAL ISDS Discussions’ (15 July 2019) both accessed 27 July 2023 (‘Interests seeking to save the ISDS regime have promoted procedural reforms while expanding investors’ substantive rights. This approach, seen in the so-called International Court System (ICS) of the Comprehensive Economic and Trade Agreement (CETA) and in the EU’s multilateral investment court (MIC) proposal, do not address the fundamental structural problem inherent to ISDS. The fundamental unfairness of ISDS is that one already powerful class of interests – multinational investors/corporations – is granted extraordinary commercial rights not available in domestic legal systems and is elevated to equal status with sovereign nations to privately enforce public treaties in extrajudicial venues. The “reform” proposals create new dangers for governments by institutionalizing problematic substantive investor rights. These discussions should instead focus on the sorts of limits on substantive rights seen in the revised NAFTA. A mechanism to facilitate this and provide an orderly change in countries’ previous obligations should be a priority’.).
• See Ibironke T Odumosu-Ayanu, ‘Local Communities, Indigenous Peoples, and Reform/ Redefinition of International Investment Law’ (2023) 24(4–5) JWIT 792; Ksenia Polonskaya, ‘Indigenous Peoples in International Investment Law: Time for a New Dispute Resolution Procedure (2023) 24(4–5) JWIT 691. In some cases arbitrators have tacitly signaled their disagreement with this asymmetrical and exclusive systemic approach. See Urbaser SA and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v The Argentine Republic, ICSID Case No ARB/07/26, Final Award (8 December 2016) analyzed by Caroline Lichuma, ‘International Investment Law Reforms and the Draft Business and Human Rights Treaty: The More Things Change the More They Remain the Same? (2023) 24(4–5) JWIT 718. See also Burlington Resources Inc v Republic of Ecuador, ICSID Case No ARB/08/5, Final Award, Decision on Ecuador’s Counterclaim (31 August 2017); Eco Oro Minerals Corp v Republic of Colombia, ICSID Case No ARB/16/41, Final Award, Partial Dissent of Professor Philippe Sands QC (9 September 2021).
• This issue was discussed and relegated for resolution in Multilateral Instrument for ISDS reform, see UNCITRAL, ‘Working Group III (Investor-State Dispute Settlement Reform) on the Work of Its Thirty-Seventh Session (New York, 1–5 April 2019)’ (9 April 2019) UN Doc A/CN.9/970 (Thirty-Seventh Session Report) paras 36–37.
• See Lorenzo Cotula, ‘International Investment Law and Climate Change: Reframing the ISDS Reform Agenda’ (2023) 24(4–5) JWIT 766.
• UNCITRAL (n 13) (noting that these cross-cutting issues were ‘raised related to concerns that had already been identified, to tools to be considered by the Working Group in phase three of its mandate, or to guiding principles for developing reforms. It was noted that it would be important to take into account all of those aspects mentioned in paragraphs 29 to 38 above as the Working Group developed tools to address concerns that had been identified so that they would be considered legitimate by all relevant stakeholders. It was reiterated that that conclusion did not preclude other concerns to be identified and dealt with at a later stage of the deliberations’). For an excellent intervention in this regard, see Lorenzo Cotula and others, ‘UNCITRAL Working Group III on ISDS Reform: How Cross-Cutting Issues Reshape Reform Options’ (Columbia Law School Centre on Sustainable Investment Staff Publications, July 2019) accessed 27 July 2023.
• UNCITRAL (n 13).
• Julian Arato, Kathleen Claussen and Malcolm Langford, ‘The Investor-State Dispute Settlement Reform Process: Design, Dilemma and Discontents’ (2023) 14(2) JIDS 2.
• See Gus Van Harten, Jane Kelsey and David Schneiderman, ‘Phase 2 of the UNCITRAL ISDS Review: Why “Other Matters” Really Matter’ (2019) Osgoode Hall Law School of York University Working Paper No 328 ; Erasmus Institute for Public Knowledge, ‘An Open Letter to the Chair of UNCITRAL Working Group II and to All Participating States Concerning the Reform of the Investor-State Dispute Settlement: Addressing the Asymmetry of ISDS’ (14 February 2019) both accessed 27 July 2023; Kelsey and Mohamedieh (n 8) 5–6.
• ibid 11.
• UNCITRAL (n 13).
• We are guided by one very simple proposition: that international investment law, and indeed all of international law ‘must be evaluated for ways in which it fails to respect the lives of persons harmed by the global economic order that it helps constitute’. See John Linarelli, Margot E Salomon and M Sornarajah, The Misery of International Law: Confrontations with Injustice in the Global Economy (OUP 2018) vii. Like these authors, not to mention innumerable others (especially those who self-identify as TWAIL scholars), we believe that ‘[i]nternational law alone cannot end underdevelopment and eradicate poverty and unjustifiable material inequality, but it is a precondition of achieving those objectives that the means by law creates wrongs are removed’ ibid 1.
• Obiora Okafor, ‘Newness and Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective’ (2005) 43 Osgoode Hall LJ 171, 173.
• Joseph Weiler, ‘European Hypocrisy: TTIP and ISDS’ (EJIL:Talk!, 21 January 2015) accessed 27 July 2023.
• See J Benton Heath, ‘The Anti-Reformist Stance in Investment Law’ (2023) 24(4–5) JWIT 564.
• Odumosu-Ayanu (n 12); Polonskaya (n 12).
• See Malcom Langford and others, ‘Special Issue: UNCITRAL and Investment Arbitration Reform: Matching Concerns and Solutions’ (2020) 21 JWIT 167; See Arato, Claussen and Langford (n 17).
• For more, see James T Gathii and Sergio Puig, ‘The West and the Unraveling of the Economic World Order: Thoughts from a Global South Perspective’ in David Sloss (ed), IstheInternationalLegalOrderUnraveling(OUP 2022).
• Vasuki Nesiah, ‘Decolonial CIL: TWAIL, Feminism, and an Insurgent Jurispruence’ (2018) 112 AJIL Unbound 313.
• Our criticisms and arguments in this Special Issue are from academics occupying positions inside the academy but outside the ‘the insiders field of ISDS’ even though some of us may be said to occupy ambiguous position(s) within it. For another and different outside criticism see Bryant G Garth, ‘One Window into the State of Insiders’ Arbitration Scholarship’ (2018) 19 JWIT 155.
• See eg International Institute for Sustainable Development, ‘Open Forum: Stakeholder Session on UNCITRAL ISDS Reform Process’ (30 October 2018) accessed 27 July 2023.
• James Thuo Gathii, ‘The Promise of International Law: A Third World View’ (Grotius Lecture Presented at the 2020 Virtual Annual Meeting of the American Society of International Law) accessed 27 July 2023.
• Thus, while the UNCITRAL and ICSID reform processes are clearly controlled by States, the other stakeholders who have been involved in this process include those of us in the Academic Forum and those in the Practitioner Group. We are both academics, so it is not heresy for us to say that there is an Academic Forum comprising academics and a Practitioner Group.
• Heath (n 24).
• Balakrishnan Rajagopal, ‘From Resistance to Renewal, From Resistance to Renewal: The Third World, Social Movements, and the Expansion of International Institutions’ (2000) 41 Harv Intl LJ 529, 577. See also Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (CUP 2013).
• See Güneş Ünüvar, ‘“Nothing Is Agreed Until Everything Is Agreed”: The Code of Conduct and Reflections on the 44th Session of the UNCITRAL Working Group III’ (Investment Treaty News, 2 April 2023) accessed on 27 July 2023.
• BS Chimni, ‘International Institutions Today: An Imperial Global State in the Making’ (2004) 15 EJIL 1, 4. (‘The class which exercises the greatest influence in [international institutions] today, and consequently on the emerging global state, is that of the transnational fractions of the national capitalist class in advancing capitalist countries with the now ascendant transnational fraction in the Third World playing the role of junior partners. Together, they constitute a transnational capitalist class (TCC) which is in the process of establishing a global state composed of diverse [international institutions] that help actualize and legitimize its world-view.’).
• Val Burris and Clifford L Staples, ‘In Search of a Transnational Capitalist Class: Alternative Methods for Comparing Director Interlocks Within and Between Nations and Regions’ (2012) 53 Intl J Comp Sociology 323, 324. See also, James Gathii and Olabisi Akinkugbe, ‘Corporate Structures and the Attribution Dilemma in Multinational Enterprises’ in MJ Durkee (ed), The Law and Logics of Attribution: Constructing the Identity and Responsibility of States and Firms (CUP 2023) (forthcoming).
• ibid.
• ibid.
• ibid.
• See Heath (n 24).
• See Charles Lipson, Standing Guard: Protecting Foreign Capital in the Nineteenth and Twentieth Centuries (University of California Press 1985).
• ibid. See also Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2012); Sannoy Das, ‘Fine Balance: Empire, Neoliberalism, and the Fair and Equitable Treatment Standard in International Investment Law’ (2023) 24(4–5) JWIT 659.
• Lipson (n 42) xvi.
• ibid 85–96.
• ibid 8.
• See eg Daniel Wilkes, ‘Restatement (Second) of The Foreign Relations Law of the United States’ (1966) 18(1) Case W Res J Intl L 350; OECD, ‘Fair and Equitable Treatment Standard in International Investment Law’ (2004) OECD Working Papers on International Investment 2004/03 accessed 27 July 2023.
• As Lipson (n 42) 11 noted, these ‘rules are inherently fragile, and adherence to them is uncertain because they lack (1) the continuous backing of coherent sanctions; (2) agreed procedures for dispute settlement; and (3) ancillary cultural and ideological support’.
• Anghie (n 43) 68.
• For other perspectives and different claims in African international investment law, see Dominic Npoanlari Dagbanja, ‘Constitutional Acquisition and Regulation of Property, Investment Treaties and Expropriation in Africa’ (2023) 24(4–5) JWIT 601; Harrison Otieno Mbori, ‘Benign and Radical Africanization in International Investment Law and Investor-State Dispute Settlement in Africa’ (2023) 24(4–5) JWIT 632.
• Roberts (n 6).
• For an extensive analysis, see Hamed El-Kady and Mustaqeem De Gama, ‘The Reform of the International Investment Regime: An African Perspective’ (2019) 34 ICSID Rev 482.
• Mark Gevisser, ‘“State Capture”: The Corruption Investigation that has Shaken South Africa’ (The Guardian, 11 July 2019) accessed 27 July 2023.
• ‘Cyril Ramaphosa – South African Union Leader, Mine Boss, President’ (BBC News, 24 May 2019) accessed 27 July 2023.
• Staff Reporter, ‘Much Hangs on Ramaphosa’s Next Step’ (Mail & Guardian, 2 November 2012) accessed 27 July 2023.
• John Kamau, ‘ANC Leader Ramaphosa and the Tidy Legacy of Lonrho’s Rowland’ (Nation, 23 December 2017) accessed 27 July 2023.
• Karl Von Holdt, ‘The Political Economy of Corruption: Elite-Formation, Factions and Violence’ (2019) University of Witwatersand Society Work & Politics Institute Working Paper no 10 accessed 27 July 2023.
• ibid 8.
• See eg Anthea Roberts and Taylor St John, ‘UNCITRAL and ISDS Reforms: Agenda-Widening and Paradigm-Shifting’ (EJIL:Talk! 20 September 2019) (arguing that South Africa is an example of a country following paradigmatic reforms) accessed 27 July 2023.
• The Natural Wealth and Resources Contracts (Review and Re-Negotiation of Unconscionable Terms) Act (Act No 6/2017) (2017) (Tanzania) accessed 27 July 2023.
• ibid art 6, §§ 2(a)–(k).
• Kemi Wood and Emma Schaafsma, Herbert Smith Freehills LLP, ‘The United Republic of Tanzania Proposes Arbitration Reforms to Placate Foreign Investors. Will It Work?’ (Africa Notes, 3 March 2020) accessed 27 July 2023.
• World Bank Group, ‘Tanzania Economic Update: Addressing the Impact of Covid-19’ (June 2020) 1, 16 accessed 27 July 2023.
• See eg Amne Suedi, ‘The Need for “Africa-Focused” Arbitration and Reform of Tanzania’s Arbitration Act’ (Investment Treaty News, 5 October 2020) 27 July 2023.
• Mark Fathi Massoud, ‘International Arbitration and Judicial Politics in Authoritarian States’ (2014) 39 Law and Social Inquiry 1.
• See James Thuo Gathii (ed), Introduction to The Performance of Africa’s International Courts: Using Litigation for Political, Legal and Social Change (OUP 2020) 16–19.
• Dagbanja (n 50); Mbori (n 50).
• Das (n 43).
• For a nuanced account of the Drago and Calvo doctrines, see Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–1933 (CUP 2014) 145–58, ch 4.
• For more on both doctrines, see James Thuo Gathii, War, Commerce and International Law (OUP 2010) 145–68. The Drago doctrine was adopted in a watered-down version – prohibiting the use of force without first acceding to arbitration – as proposed in the Second Hague Peace Conference in 1907. See Juan Flores Zendejas and Felipe Ford Cole, ‘Sovereignty and Debt in Nineteenth-Century Latin America’ in Pierre Penet and Juan Flores Zendejas (eds), Sovereign Debt Diplomacies: Rethinking Sovereign Debt from Colonial Empires to Hegemony (OUP 2021) 66.
• Gathii (n 70) 153–54 (‘Arbitration for them was an example of a larger set of voluntary and consensual processes that States could use to resolve conflicts rather than resorting to war. These lawyers celebrated international law as a noncoercive solution through which problems, domestic and international, could be cooperatively and beneficially resolved’).
• ibid 212 (citing the Atlantic Charter of 1941 to the effect that the Allies, ‘will endeavor … to further the enjoyment by all States, great or small, victor or vanquished, of access, on equal terms, to the trade and to the raw materials of the world which are needed for their economic prosperity’).
• Anghie (n 43) 224.
• ibid 230 (citing M Sornarajah). Anghie summarizes the argument as follows: ‘The whole framework of contracts is crucial to the attempt to establish that international law is neutral, that the arbitrators are doing no more than enforcing the agreements that had been freely entered into by sovereign states on the one hand and MNCs on the other. The point, however, is that it is international law that legitimized, through doctrines of conquest and by upholding unequal treaties, the imbalances and inequalities in social and political power that are inevitably reflected in international contracts which are then characterized as expressing the free will of the parties. The old international law of conquest creates the inequalities that the new international law of contracts perpetuates, legalizes and substantiates when it “neutrally” enforces the agreements, however one-sided, entered into by sovereign Third World states. It is in this way that the “old” international law of imperialism, based on conquest, is connected with the new international law of imperialism, based on contracts’. ibid 241. See also J Patrick Kelly, ‘Customary International Law in Historical Context: The Exercise of Power Without General Acceptance’ (2017) Widener University Delaware Law School Legal Studies Research Paper Series No 17–06 accessed 27 July 2023.
• See Christy Thornton, ‘The NIEO as Cautionary Tale’ (Progressive International, 29 December 2022) ; Umut Özsu, ‘The NIEO as Law’ (Progressive International, 4 January 2023) ; Max Ajl, ‘The NIEO in a State of Permanent Insurrection’ (Progressive International, 10 January 2023) all accessed 27 July 2023. See also Christy Thornton, Revolution in Development: Mexico and the Governance of the Global Economy (University of California Press 2021) ch 8.
• Thornton (n 75) 154. See also Liliana Obregón, ‘Noted for Dissent: The International Life of Alejandro Álvarez’ (2006) 19 LJIL 983; Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–1933 (CUP 2015).
• Yves Dezalay and Bryant G Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press 1996).
• Sergio Puig, ‘Network Analysis and the Sociology of International Law’ (2018) Arizona Legal Studies Discussion Paper No 18–06 accessed 27 July 2023.
• As Upendra Baxi argues, private international law is ‘heavily burdened by doctrinal twists and turns in pursuit of what are considered its core objectives (uniformity, certainty, and predictability or “decisional harmony”)’. Upendra Baxi, ‘Some Newly Emergent Geographies of Injustice: Boundaries and Borders in International Law’ (2016) 23 Ind J Global Legal Stud 15, 23.
• André Gorz, Strategy for Labor (Beacon Press 1964).
• Heath (n 24) 564.
• Olabisi D Akinkugbe, ‘Africanization and the Reform of International Investment Law’ (2021) 53 Case W Res J Intl L 13.
• See eg Lorenzo Cotula, ‘Between Hope and Critique: Human Rights, Social Justice and Re-Imagining International Law from the Bottom Up’ (2020) 48 Ga J Intl & Comp L 473, 486–87 (‘In many resource-dependent countries the intensification of natural resource extraction, as part of an “extractivist” development model that places the commodification and exploitation of natural resources at the centre of economic growth strategies, has fostered widespread concerns about social and environmental impacts, the dispossession of rural people, and structural imbalances in the legal frameworks that underpin resource extraction.’).
• Polonskaya (n 12).
• ibid.
• Jarrod Hepburn, ‘Analysis: Interim Measures Granted by Inter-American Commission Have Featured in Several Recent Investment Controversies’ (IAReporter, 14 March 2012). Also relevant here is the Treaty of Waitangi Exception now incorporated in New Zealand trade and investment treaties to safeguard the rights of indigenous peoples. See Waitangi Tribunal, ‘Report on the Trans-Pacific Partnership Agreement’ (2016) WAI 2522/2016 accessed 27 July 2023. This example suggests that a country by country approach is one approach to address the intersection of rights of indigenous peoples and international economic law treaties. Yet, this example also shows the limitation that indigenous sovereignty is likely to be always subject to the sovereignty of the settler State in question.
• See Lichuma (n 12).
• ibid.
• See Draft Pan-African Investment Code (December 2016) accessed 27 July 2023. See also Olabisi D Akinkugbe, ‘Reverse Contributors? African State Parties, ICSID, and the Development of International Investment Law’ (2019) 34 ICSID Rev 434; Makane Moïse Mbengue, ‘Africa’s Voice in the Formation, Shaping and Redesign of International Investment Law’ (2019) 34 ICSID Rev 45; also see Mbori (n 50).
• Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (signed 2 April 2019, adopted 27 June 2014) art 46C, para 1 . See also Matiangai Sirleaf, ‘The African Justice Cascade and the Malabo Protocol’ (2016) University of Pittsburgh Legal Studies Research Paper Series Working Paper No 2017-01 both accessed 27 July 2023; Taygeti Michalakea, ‘Article 46C of the Malabo Protocol: A Contextually Tailored Approach to Corporate Criminal Liability and Its Contours’ (2018) 7 IHLR 225; Neil Boister, ‘Transnational Crimes Jurisdiction of the Criminal Chamber of the African Court of Justice and Human and Peoples’ Rights’ in Charles C Jalloh, Kamari M Clarke and Vincent O Nmehielle (eds), The African Court of Justice and Human and Peoples’ Rights in Context: Development and Challenges (CUP 2019) 336–61.
• Sandra Cuffe, ‘Guatemala Mine’s Ex-Security Chief Convicted of Indigenous Leader’s Murder’ (The Guardian, 7 January 2021) accessed 27 July 2023.
• ibid.
• See eg ‘Spotlight on Criminalisation of Land and Environmental Defenders’ (Global Witness, 30 July 2019) accessed 27 July 2023.
• Nitish Monebhurrun, ‘Incorporating the Social License to Operate into Internnational Investement Law: Taking Stock From the Brazilian Experience’ (2023) 24(4–5) JWIT 744. On CFIA, see also, Dilini L Pathirana and James T Gathii, ‘Termination and Amendment of Treaties and Modernization and Reform of Investment Treaties: Which Way Forward?’ in Esmé Shirlow and Kiran Nasir Gore (eds), The Vienna Convention on the Law of Treaties in Investor-State Disputes (Wolters Kluwer 2022) 271.
• Usha Natarajan and Julia Dehm, ‘Introduction: Where is the Environment? Locating Nature in International Law’ in Usha Natarajan and Julia Dehm (eds), Locating Nature: Making and Unmaking International Law (CUP 2022) 1–20.
• Cotula (n 14).
• See Odumosu-Ayanu (n 12).
• See ibid.
• For these reasons, M Sornarajah has argued in favor of abolishing this system of international investment law. See Sornarajah (n 4) 408.
• Linarelli, Salmon and Sornarajah (n 21) 272.
• Heath (n 24).
• Marbre Stahley-Butts and Amna A Akbar, ‘Reforms for Radicals?: An Abolitionist Framework’ (2022) 68 UCLA L Rev 1544.