International Investment Law – The making of a legal field
In my dissertation I investigates the making of the field of international investment law in the course of the 20th century. While the majority of contemporary accounts of the discipline locate its origin in 1959 and the first bilateral investment treaty between Germany and Pakistan, my account takes this moment as an end rather than a starting point. The thesis examines various arbitrations and attempts at codification between the 1920s and the 1960s. The research question guiding this project is: how did the contemporary rules of international investment law come about and what changes in legal landscape of investments were realized through the novel regime?
I build on jurisdictional thinking conceptualising law as practice and technique, rather than as concept and norm. This allows me to set aside the question of the concrete form the norm would eventually take and look at its formation instead. By looking at its formation I can draw out the underlying ideas, understandings and biases that allowed a certain community (the arbitrators, practitioners and scholars engaged in the field) to advance one legal configuration over another. The overall picture that emerges shows the consolidation of authority through a jurisdictional apparatus that is composed of three parts: a forum, substantive law and an enforcement mechanism. The substantive law was provided through numerous bilateral investment treaties that were predominantly advanced by the Germany, Switzerland, Italy and the Netherlands. The enforcement mechanisms and the forum for disputes, were both contained in the International Convention for the Settlement of Investment Disputes in 1966, developed under the auspices of Aaron Broches at the Worldbank.
What is finally achieved through this jurisdictional apparatus, is an international legal property regime inscribing a particular form of property construction around the globe. In the 19th century the rights of ownership and usage, and thus distribution of resources, were considered to be a question of national laws. After the socialist revolutions and decolonisation, the authority over the legal design of property relations concerning foreigners was lifted to the international sphere. What began as concession agreements under national, and imperial jurisdictions at the beginning of my story became protected investments under an international regime.