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Andreas Kulick

Telling the history of something requires choosing a perspective. This perspective is the lens through which we look at a specific topic or field. Thus, one cannot but present such history from certain perspectives. Once accounts of events, facts or material are being presented from a certain perspective, they turn into narratives. This chapter seeks to illustrate how certain stakeholders in the investment community present certain narratives of the history of international investment law, asserting – sometimes deliberately, sometimes inadvertently – the narratives’ objectivity and thereby shaping certain perceptions of the history according to their view on the present and future of the field. Insights from historiography, the philosophy of language and modern linguistics inform such inquiry. It is the chapter’s aim to demonstrate how certain epistemic communities employ such narratives and thereby to enhance investment law scholars’ and practitioners’ awareness vis-à-vis the constructive character of these narratives.

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Andreas Kulick

It has become a widespread concern in recent years that there exist frictions between international investment law and arbitration and democratic governance. In particular, investor-state tribunals can issue awards that may reverse, at least de facto, decisions by democratically legitimated and democratically accountable domestic decision-makers that are deemed pivotal, by those decisionmakers, for the pursuit of the public interest of their constituency. The pressure on domestic and regional decision-makers to find responses to such frictions, through treaty-drafting or otherwise, has increased considerably in recent years and arguably has led to a shift in the official policy of traditional proponents of the established system of international investment law and arbitration. This paper explores the potential and the pitfalls of democracy as an argumentative topos informing our view on investment arbitration and the interpretation of international investment agreements, with a specific focus on the allocation of interpretative authority among the contracting parties, investor-state tribunals and state-state tribunals.