- Elgar International Investment Law series
Chapter 3: Theoretical approaches to international investment law
A survey of the theoretical underpinnings of international investment law (IIL) aims to clarify the basic conceptual elements that influence the ways by which legal practice on investments and the environment are scrutinized and ordered in this book. This means that theoretical approaches to IIL are critically analysed to understand whether and to what extent integrating environmental concerns when applying investment rules would be influenced – or even denied – by following one or another of the theoretical points of view analysed here. With this in mind, Chapter 3 considers how these theoretical approaches perceive IIL: that is, whether international investment law is a unit or a set of fragmented elements, and what purposes guide its interpretation. Moreover, specific consideration is given to how these approaches comprehend the relation- ship between this supposed subsystem of law (or the treaty regimes that compose it) and international law as a whole. The concept of fragmentation is well suited to IIL. The image which best synthesizes it is that of a patchwork, given its fragmentation into a multiplicity of autonomous legal instruments and, by the same token, the settlement of investment disputes by independent investment tribunals. This framework provides a first notion of fragmentation in the international law on foreign investments, and if taken to its extreme consequences, would even prevent scholars from construing international investment law in a unitary manner. This first general notion of fragmentation in IIL is slightly different from that which has increasingly distinguished scholarly debates on 21st-century international law.
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