Bridging the Gap
Edited by Stephan W. Schill, Christian J. Tams and Rainer Hofmann
Chapter 3: International investment law and development: A history of two concepts
As suggested by the title of this edited volume, a historiography of the relationship between international investment law (IIL) and development reveals that the question of the nature of their relationship has generated passionate debates in particular within the investment law community. Indeed, some regard IIL as a threat to development and as the source of ‘regulatory chill’, while others conceive of IIL as a tool to foster development. Beyond the empirical evidence used to support these respective viewpoints, these different perspectives are often the result of diverging approaches to IIL. Underlying these approaches are different legal backgrounds, methodologies and research objectives. In that epistemological context, the history of the concepts of IIL and development can hardly be told. No scholar can pretend to tell the objective history of this relationship, nor can they pretend to have an all-encompassing approach to this history. In light of the above, this chapter proposes a history of international investment law and development that aims at retracing the legal relationship between these two concepts from within the ‘box’ of IIL, i.e. by analyzing the way states and arbitration tribunals have conceived of the relationship between IIL and development. More precisely, one endeavors to demonstrate that from this perspective, IIL has always been a ‘friend’ to development. To do so, this chapter unravels and examines the policy objectives and challenges, the legal uncertainties and innovations that have characterized the relationship between IIL and development in the practice of states and arbitrators.
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