International Investment Law and Development
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International Investment Law and Development

Bridging the Gap

  • Frankfurt Investment and Economic Law series

Edited by Stephan W. Schill, Christian J. Tams and Rainer Hofmann

Foreign investment is meant to contribute to the host country’s development, and yet international investment law has often been seen as an obstacle to (sustainable) development. So are investment and development friends or foes? Combining critical reflection and detailed analysis, this timely volume explores the relationship between the two concepts and explores options of harnessing investment for development.
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Chapter 7: Aspiring for a constructive TWAIL approach towards the international investment regime

Antonius R. Hippolyte

Extract

Development in its myriad forms and meanings has been an important post-colonial desire of developing countries, and these countries have responded to it in different ways. Significantly, developing countries desired international law’s reconstruction to take into account their socio-economic interests as newly emergent countries. Thus, in the post-colonial era, Third World Approaches to International Law (TWAIL) surfaced as an analytical tool, which sought to appraise the validity and universality of international law’s relationship with developing countries. TWAIL emerged as an alternative narrative, which sought to supplant what it considered the domination of international law by the West. TWAIL’s criticisms of international law are manifold and international economic law has been no exception. Acutely aware of their post-colonial situation, developing countries sought to re-evaluate and suggest changes to international economic governance that would enable their national governments to reclaim control of domestic economies, thereby giving substance to their newfound independence. Today, the debate has witnessed a paradigm shift that places less emphasis on having control over one’s domestic economy than the national economic control (NEC) model, which presupposes a sort of isolationist, or at least a conceptual, distinction between national and foreign economies. It refers to a country’s right to exercise sovereignty over its domestic economy without subscribing to the rules of international economic governance. This early 20th century NEC model influenced the failed New International Economic Order (NIEO) project.

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