book symposium - investment treaties and the legal imagination
Coming across to a matter of study is a unique experience. The zooming in between the subject -the curious individual asking questions- and the object -a multilevel set of ideas, facts, and processes that are to be perceived- may happen under diverse circumstances. In the case of Nicolás Perrone and International Investment Law and Arbitration (hereinafter IIL+A), the reader will note that the corresponding learning process comes from the direct experimentation of the phenomenon. Thus, the study intends to reveal that behind the structures that shape the way we are in this world, there are particular imaginations by virtue of which identities are defined and relations are set up.
Hence, it seems that through his work, the author is inviting us to feel the woman who cannot withdraw her life savings to pay for her husband´s surgery due to an international bank´s discretionary policies; the peasant that struggles to sell his crops on the occasion of the flooding of cheap foreign products at supermarkets; the Indigenous community who loses their common lands due to the granting of extractive concessions; etc.
Following this train of thought, Investment Treaties and the Legal Imagination is an academic project that seeks to transform a particular experience -with its corresponding sensitivity- into a sophisticated interdisciplinary analysis of a global phenomenon: the flux of capital to reproduce and concentrate wealth. In this regard, the author´s main contention is that the associated IIL+A legal regime is not only a means to resolve disputes but a platform to shape relations and channel conduct. In order to support this statement, the book focuses on foreign investors´ rights, property, and contracts, to show IIL+A´s distributive and normative implications.
Perrone argues that the bulk of relationships that constitute the nature and extent of foreign investments go beyond investors and states, and also include and affect local communities. Thus, the shaping of such relations takes place through the sophisticated interaction among a multi-level set of actors, norms, and processes, which validates assuming a transnational perspective on the matter (Zumbansen, 2011). But crucial to the understanding of this dynamic -and arguably the greatest contribution of this study- is the contention that the legal imagination embedded in IIL+A is a main determinant of such process. Therefore, the author suggests that rethinking this normative structure requires engaging in constructive discussions about where to take the associated relations in the future.
Nicolás self-identifies as a transnational lawyer with intellectual appetite for a global topic that has affected his immediate surroundings. The corresponding observation reveals that people’s lives are not determined by their sovereign choices, as promised within a social contract that defines and advances the public interest, but by an “econo-socio-legal scheme” (Perry Kessaris, 2015) stemming from particular rationales and expectations that represent a limited group of individuals and entities.
So far, the -scholarly and public- conversation around the normative tensions between IIL+A and the promotion and protection of public interests (Schneiderman, 2008; Sornarajah, 1996; Tienhaara, 2009; and Van Harten, 2013, among others) has emphasized how the market-based global economic model has instrumentalized the legal phenomenon to establish transnational frameworks that have the capability to (1) restrict democratic processes, (2) establish constitutional-like limitations on the regulatory capacity of nation-states to serve collective expectations, and (3) contravene public law principles. Yet, these contributions fell short of depicting the provenance and substance of the logics and rationales that feed the corresponding transnational legal process, nor displayed a consistent explanation of how the resulting dynamics of such interaction affect the lives of the people who constitute and legitimize the associated global structure.
In this regard, the book´s reliance on the recent turn to history in international law (Arvidson & Bal McKenna, 2020), as well as on the ethnographic methodologies affiliated to sociolegal studies, has provided important tools to advance knowledge and introduced two elements crucial to this intellectual project.
On the one hand, the book provides a clever genealogical illustration of how the legal imagination that has strengthened foreign investors’ interests and expectations rose as a hegemonic discourse that intends to ensure certainty and predictability. This picture is achieved by means of the mapping out of a powerful epistemic community that is identified as “the business leaders, bankers, and lawyers who promoted investment treaties and ISDS in the 1950s and 1960s.” The study succeeds in depicting the latter community as a collective of knowledge-based experts that articulated cause-effect relationships to produce a particular imagination that influenced states to identify the objectives associated with the protection of foreign investment as their own interests, and consequently develop norms and policies on the matter (Haas, 1992).
On the other hand, and having the aforementioned intellectual history exercise in mind, the book implements a case-study methodology to provide an in-depth picture of the implications of IIL+A on particular social relations. In this regard, the study focuses on several influential arbitral awards and their effects within the context of the corresponding controversy, in order to show how arbitrators engage with issues of distribution, recognition, and embeddedness. Particularly, both the 2001 crisis in Argentina and the solar system industry in Spain are taken as paradigmatic cases by virtue of which foreign investment relations tend to be unplugged from domestic public law imperatives. This way, those relations are projected through the lens of a transactional model whereby local communities and their particular situation vanish from the discussion.
At this point, it is fair to point out that it is not that the early scholarship that critically addressed IIL+A did not consider the effects of the linked normative elements on social relations, and particularly on local communities. To the contrary, they commenced this important task through the in-depth account of the effects of IIL+A on states and their regulatory capacity, as well as on as on the normative abstraction of the relations between the authority and citizenship (Public Law). These outputs were certainly necessary to place the conversation on the tables of both academics and policymakers. Now, with Investment Treaties and the Legal Imagination, the torch has been effectively carried forward by the author so as to expand our understanding of the specific implications of IIL+A´s structural and substantive elements on the counterhegemonic resistance that, in different latitudes of the world, communities exert to preserve their rights, identities, and ways of life (Sousa Santos & Rodríguez, 2005).
Marco A. Velásquez-Ruiz
Marco Velásquez-Ruiz is a Colombian lawyer with postgraduate degrees (masters – IHEID 2010 and PhD – Osgoode Hall 2016) in international law. He teaches, researches, and consults in the areas of international economic law, human rights, and Transitional justice