Do Developing Countries really Benefit from Investment Treaties? The Impact of International Investment Law on National Governance
Contemporary international rules on investment protection have their historical roots in a system that was designed to protect interests of foreigners abroad—to ensure that foreign business actors in host states benefited from governance as good as that they enjoyed in their home states, even if a host state’ legal system fell below the acceptable standard. Having met with strong opposition from a wider international community, the idea of special treatment—or good governance—for foreign investors has nevertheless entered the corpus of international law through IIAs. Supported by its own bespoke dispute settlement mechanism (ISDS), the modern IIA regime effectively reaffirms the historically contested rules on special treatment of foreign investors. In its recent strides, however, the investment treaty regime has moved far beyond its original mission of safeguarding foreign investors against serious breaches of international law, such as outright takings of property and denial of justice. Special treatment of foreign investors now means that international business actors may claim redress even for governmental actions displaying “a relatively lower degree of inappropriateness.”
To support the expansion of the scope of state responsibility under investment treaties, new justifications have been proffered claiming that the regime fulfils a useful societal function. Some of the emerging narratives argue that investment treaties and ISDS benefit not only foreign investors but also a broader range of stakeholders in host states, from businesses to ordinary citizens. Even if investment treaties might be unsuccessful in achieving their economic objectives, it is argued, their existence would still be justified by good governance norms enshrined in substantive standards of treatment such treaties impose on state parties. The key premise of the good governance narrative is that the remedy of damages would pressure host states into complying with and incorporating the good governance standards in their domestic legal order and wider bureaucratic practices. The recent proliferation of good governance narratives in investment treaty practice, arbitral awards and academic literature raises questions as to their juridical, conceptual and empirical underpinnings. In this presentation I will discuss some of these questions.
Dr Sattorova’s research primarily focuses on international investment law. Her most recent work examines the impact of investment treaty law on national policy-making and governance. She works closely with international organisations and government agencies involved in the design and reform of international investment treaties and national investment policies. Dr Sattorova has published extensively on international investment law and worked in an expert capacity with the UNCTAD Investment Division and the World Health Organisation. Lately she has been exploring an empirically-driven approach to investigating the interaction between investment treaty rules with national law and policy, in particular in developing countries. Dr Sattorova’s monograph ‘The Impact of Investment Treaty Law on Host States: Enabling Good Governance?’ has been published by Hart Publishing in 2018. She is currently a Reader at the School of Law and Social Justice and Director of Liverpool Economic Governance Unit, University of Liverpool.
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