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INVESTMENT LAW’S ALIBIS
This book aims to connect narratives associated with the past to the
international regime that protects property and contract rights of foreign
investors. The book scrutinizes justifications offered to sustain practices
associated with colonialism, imperialism, civilized justice, debt and devel-
opment, revealing that a number of the rationales offered in support of
investment law disciplines replicate those arising out of this discredited
past. By revealing these linkages, the book raises concerns about investment
law’s premises. It would appear that the normative foundations for today’s
regime reproduces discursive practices that are less than compelling. The
book argues that citizens deserve more than historically discredited reasons
to justify the exercise of power over them – something more than mere
pretext.
  is Professor of Law and Political Science at the

University of Toronto where he teaches and writes in the areas of
constitutional law and international investment law. He has been visiting
Professor of Law at Gothenburg University, University of Stockholm, Tel
Aviv University, Hebrew University of Jerusalem, Georgetown University,
Columbia University and the New School for Social Research. He is the
author of over eighty articles and book chapters and is also the author or
editor of twelve books.
Published online by Cambridge University Press

CAMBRIDGE STUDIES IN INTERNATIONAL
AND COMPARATIVE LAW: 168
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A list of books in the series can be found at the end of this volume.

INVESTMENT LAW’S ALIBIS
Colonialism, Imperialism, Debt
and Development
DAVID SCHNEIDERMAN
University of Toronto

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© David Schneiderman 2022
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Names: Schneiderman, David, 1958– author.
Title: Investment law’s alibis : colonialism, imperialism, debt and development /
David Schneiderman, University of Toronto.
Description: Cambridge, United Kingdom; New York, NY: Cambridge University Press, 2022. |
Series: Cambridge studies in international and comparative law | Includes bibliographical
references and index.
Identifiers: LCCN 2022013581 (print) | LCCN 2022013582 (ebook) | ISBN 9781009153492
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accurate or appropriate.

To my sister Marilyn,
fondly remembered,
and
to her daughter, Emily,
who carries on her legacy of kindness

I refuse the universal alibi . . .
I wait
For each one of you to confess
Leonard Cohen, ‘What I’m Doing Here’ in Flowers for Hitler (McClelland
& Stewart 1964) 13

CONTENTS
Acknowledgements viii
Introduction: Investment Law among the Ruins 1
1 Colonialism of Investment Law 16
2 Imperialism of Investment Law 38
3 The Decline and Rise of Standards of Civilized Justice 66
4 The Stifling Threat of Debt 89
5 The Difficulty of Decolonizing Investment Law 129
6 Divesting for Development 153
Conclusion 171
Bibliography 180
Index 225
vii

A C K N O W L ED G E ME NTS
This book is the fruit of an intellectual sojourn to Sweden. I owe particu-

lar thanks to Pål Wrange of the Department of Law at Stockholm
University and his colleagues at Stockholm Centre for International
Law and Justice, Mark Klamberg and Said Mahmoudi, who generously
provided me with an institutional home abroad. I am grateful for Pål’s
generous welcome and my continued collaboration as an affiliated pro-
fessor of law at Stockholm University.
I am also indebted to Gregor Noll and Sara Stendhal of the
Department of Law at Gothenburg University for inviting me to serve
as Torgny Segerstedt Visiting Professor in 2019–20. Interacting with
Gregor and Sara and other colleagues at Gothenburg was an immense
gift during my tenure there (until the Covid-19 pandemic struck). I am
grateful to the Torgny Segerstedt Foundation for their support and am
privileged to have served in a chair honouring the Swedish newspaper
editor who, in 1933, called out Nazism as an abomination to humanity.
At both Stockholm and Gothenburg, I was very fortunate to have been
surrounded by a talented group of graduate students who warmly wel-
comed a North American with foreign legal sensibilities. One of the real
joys of visiting both law schools was an opportunity to interact with, and
learn from, these emerging scholars.
The influences at work in this book are many. Among the non-
bibliographic sources, but one of the most profound, were summers
spent as a youth worker at Elizabeth Metis Settlement, a community of
Cree-speaking non-status Indians in north-eastern Alberta, who wel-
comed me into their circles in the summers of 1980 and 1981. It was in
the course of being immersed in that community that I learned most
about the hardship, but also the joys and humour, of Indigenous life in
North America.
I was privileged to present draft chapters of this book at the inaugural
International Economic Law Collective Conference at Warwick Law
School, the Institute for Law and Global Policy Conference (IGLP) at
viii

 ix
Harvard Law School, the Pasts and Futures of Property Seminar Series
at Lund University Law School, the European Journal of International
Law (EJIL) Symposium on Inequalities and International Law, the
Transnational Law Colloquium at the Center for Transnational Legal
Studies (CTLS), and the Globalization, Law and Justice Workshop at the
University of Toronto. I am grateful for the many comments and insights
offered at these events. I am particularly indebted to the intellectual
friendship of Jimena Sierra and Frederico Suarez, who included me in
their panel at IGLP, to Leila Brannstrom, Marcus Gunneflo, and Daria
Davitti for their intellectual engagement and hospitality at Lund, to
Michael Waibel and Lee Buchheit for comments at the EJIL workshop,
to Peter Byrne and Walter Stoffel for welcoming me at CTLS, and to
Karen Knop for convening the Toronto workshop. I continue to be
indebted to the Social Science and Humanities Research Council for a
grant that helped to support part of this research and to John Metzger
for bibliographic help. An earlier version of Chapter 3 was previously
published in Transnational Legal Theory.
This book would never have been completed without the love and
support of Pratima Rao and our children Kiran and Anika. Not only did
they provide me with the luxury of time necessary to complete this work,
but they also tolerated my experiments in home cooking.
The book is dedicated to two women who are close to my heart – my
departed sister, Marilyn, and her daughter, Emily. The first, I miss dearly,
and the second, I am fortunate to have in my life.

u
Introduction
Investment Law among the Ruins
Being past, being no more, is passionately at work in things.1
This book is prompted by a modest intuition. Thumbing through a well-

worn copy of Albert Memmi’s The Colonizer and the Colonized,2 one can
spot arguments familiar to those labouring in the field of international
investment law. Memmi’s ‘portrait’ of the colonizer, as revealed to him in
colonial Algeria, is strikingly similar to the visage portrayed by investment
lawyers, arbitrators and scholars. These are the norm entrepreneurs,
promoting and participating in the spread of international investment
law, a regime comprising almost 3,300 treaties (bilateral and regional)
protecting the property, contract and due process rights of foreign invest-
ors.3 Chapter 1 of this book began with the object of drawing out resem-
blances, but also differences, between colonialism and the newer regime to
protect foreign investors abroad. Little attention was paid to the method
being deployed4 – it looked vaguely like discourse analysis, with which
I had some familiarity.5 A similarly inductive approach, though now with
an emphasis on practices and legal forms, was adopted for Chapter 2 on
imperialism in which international lawyer Mohammed Bedjaoui served as
the principal informant. Other interlocutors came to inform other
1
Benjamin (1999) at 833.
2
Memmi (1991). I was thumbing through a second hand, English language paperback
edition (Memmi 1967), which I purchased while pursuing undergraduate studies at
McGill university.
3
For an introduction to the regime, see my two previous books: Schneiderman (2008) and
Schneiderman (2013). On the number of international investment agreements in force, see
UNCTAD (2020) at 106.
4
On not ‘privileging methodology’, see Foucault (1977a) at 404. On the uncertainty of
proceeding without a clear methodological path forward, see Foucault (1985) at 7 (‘as to
those, in short, for whom to work in the midst of uncertainty and apprehension is
tantamount to failure, all I can say is that clearly we are not from the same planet’).
5
In the nature of a ‘discursive account of power’ as theorized by Jessop and Sum (2001) at
93. I was operating under the influence of Hall (1977) and Hall (1982).
https://doi.org/10.1017/9781009153515.001 Published online by Cambridge University Press

 :     
chapters of this book, oftentimes from locales outside the mainstream
sources of international economic law. What became clear as the writing
proceeded was that, in so far as investment law’s rationales and techniques
replicated elements drawn from a discredited past, it raised concerns about
its very premises. It became apparent that the normative foundations for
today’s regime reproduces discursive practices that are less than compel-
ling and whose origins lie in ruins.6 Indeed, they should be embarrassing.
This book is also prompted by a denial. Much of the scholarship on
investment law chooses to ignore the past. Institutional memories are of
little consequence to contemporary international investment lawyers as it
has been overtaken by a new treaty-based regime premised on consent and
reciprocity. States in both the northern and southern hemispheres have
voluntarily signed onto these treaties, it is said, and they continue to
undergo renewal and reform.7 Even if there is dissatisfaction expressed
in some quarters, very few states have withdrawn from the regime.
Moreover, treaties ensure reciprocity between party states – both capital-
exporting and capital-importing states are bound by investment treaty
disciplines.8 Scholars, therefore, choose to emphasize rupture over resem-
blance. Among those who prefer to ignore the past are Dolzer and
Schreuer, who write that ‘[w]ithin this new climate of international eco-
nomic relations, the fight of previous decades against customary rules
protecting foreign investment [have] abruptly become anachronistic and
obsolete’. If the past is of no consequence, it offers no guidance to grasping
the contemporary international regime, they argue.9
There is, happily, a stream of investment law scholarship, if small in
numbers, that insists on the past’s reinscription, rather than its rupture,
in contemporary investment law.10 Sornarajah is an exemplar who places
history at the centre of his analyses. One of his objectives has been to
restore the relevance of UN General Assembly resolutions associated
with the New International Economic Order (NIEO) – what Sornarajah
describes as ‘founding norms’ of an important branch of international
6
Stoler (2013).
7
If the terms Global North and South are ‘slippery’ terms, smoothing over many complex-
ities, I refer to this hemispheric binary in order to emphasize not only the gaping divide
but the intimate relationship between the two. See discussion in Comaroff and Comaroff
(2012) at 45–47.
8
Reciprocity in treaty making is no new thing. The question is whether this reciprocity is
genuine. See Roy (1961) at 876, 882–83.
9
Dolzer and Schreuer (2012) at 5.
10
On rupture versus reinscription, inspired by Foucault, see Stoler (1995) at 89, 199.

:      
law.11 Declarations of newly decolonized states concerning ‘permanent
sovereignty over natural resources’12 comprise customary international
law norms that have not been displaced by international law on foreign
investment, it is argued.13 Sornarajah claims that there is ‘continuity’
between the colonial past and the postcolonial present14 – the ‘pre-
existing system of dominance continues’, he maintains.15 Miles also
traces the origins of foreign investment law to the ‘history of colonialism’.
The ‘calculated, often brutal, use of force, and the manipulation of legal
doctrines to acquire commercial benefits’ lie at the foundations of the
contemporary regime.16 These origins ‘drove’ and ‘shaped’ investment
law, but these linkages appear more tenuous than Sornarajah’s claim of
continuity.17
The historical context, treaty texts and exercises of power that pro-
pelled ‘take-off’ of the investment treaty regime all point in the direction
of its colonial origins.18 The rise of investment law clearly has affinities to
‘colonial occupation and its aftermath’, observes Van Harten.19 Macro-
historical work tracing the origins of investment law is likely to grow in
volume20 as will valuable archival work addressing the origins of particu-
lar standards of treatment (such as the origins of ‘fair and equitable
treatment’ (FET))21 and more sweeping intellectual histories.22 Despite
history as a promising growth industry in investment law scholarship,
much of the extant literature omits any serious treatment of the past.23
11
Sornarajah (2019) at 193.
12
GA Resolution 3281 (XXIX) of 1974.
13
Sornarajah (2010) at 82–84.
14
15
16
Miles (2013) at 32.
17
Miles (2013) at 32, 387. For Miles, the past ‘is of fundamental importance to the shape
and character’ of present-day investment law in Miles (2013) at 32. It drives the cycles of
‘constraint’ and ‘resistance’, helping to explain the rise of the contemporary regime as a
response to the threat posed by the NIEO in Miles (2013) at 115. Miles devotes only the
first half of her book to this account of investment law’s origins (in ‘Part I: Historical
Evolution of Foreign Investment Law’). See my review in Schneiderman (2014).
18
Anghie (2004) at 224.
19
Van Harten (2020) at 17.
20
For example, Vandevelde (2017).
21
See, for example, Pinchis-Paulsen (2018), Blandford (2017) and Paparinskis (2013) parts
I and II.
22
See, for example, Perrone (2021) and St. John (2018).
23
An exception is the edited collection of disparate papers in Schill, Tams and Hoffmann
(2018).

 :     
For the most part, the historical roots of investment law remain stationed
outside the field’s barricades. This estrangement from contemporary
debates seems more than peculiar – it looks strategic. As Bloch reminds
us, it beggars belief to suppose that, ‘within a generation or two, human
affairs have undergone a change which is not merely rapid, but total’.24
History, after all, generates legitimate sources of authority and reinforces
the value of former legal exploits.25 Indeed, investment lawyers and
scholars favour just this sort of ‘progressive teleology’ in which the world
is increasingly encompassed by the spread of ‘commerce, civilization and
(especially) development’.26 If history provides resources that carry sig-
nificant normative force, it is unusual that it is of little utility to propon-
ents of the contemporary regime. They curiously reject the narrative of
progress when it comes to explaining the normative foundations of
investment law.
Nor does the ‘historical turn’ in international law seem to have exerted
much influence.27 With some exceptions, international law scholarship
representative of that turn is in the service of conscripting history in
order to make normative arguments today.28 Anghie, for instance, claims
that the new international law ‘perpetuates, legalizes and substantiates’
the ‘old international law of conquest’.29 It is not historiography per se
that contextualizes past controversies but a style that resurrects history in
the service of argumentative ends that connects international law to
imperialism. Orford acknowledges the necessity for anachronism in the
study of international law. The past, she writes, ‘is constantly being
retrieved as a source or rationalisation of present obligation’.30
International law requires attentiveness to the ‘movement of meaning’,
24
Bloch (1992) at 32. Similarly, when ‘one discursive formation is substituted for
another . . . [it] is not to say that all objects or concepts, all enunciations or all theoretical
choices disappear’ in Foucault (1972) at 173.
25
Orford (2012) at 9 observes that, for lawyers, the past is ‘constantly being retrieved as a
source or rationalization of present obligation’.
26
Koskenniemi (2016a) at 106.
27
See Arvidsson and McKenna (2019) for a helpful mapping.
28
Foucault (2003a) at 66 describes history’s functions as ensuring the ‘greatness of the
events or men of the past could guarantee the value of the present’.
29
Anghie (2004) at 241.
30
Orford (2013) at 175 and Orford (2017) at 304. See also Craven (2016) at 34 (inter-
national law is a ‘field of practice whose meaning and significance is constantly organized
around, and through the medium of, a discourse that links present to past’). Even
d’Aspremont’s call for a radical historical critique of international law calls upon scholars
‘to redraw the past and mobilise it to serve a present claim’. See d’Aspremont (2019)
at 114.

:      
which she associates with genealogy, that enables ‘conversations’ to
persist over time.31 The object, for Orford, as for others writing critical
histories of international law, is to retrieve history so that present
instances of injustice and domination can be connected to those of the
past and, thereby, be better understood and resisted.32
There are, to repeat, isolated contributions to understanding invest-
ment law’s origins, but they are uncommon. There might be any number
of explanations for the field’s disinterest in the past. One explanation could
be its disruptive effects. It would be intolerable, in other words, for
discredited forms of domination to be invoked today.33 This book, how-
ever, is not one about history, nor does it employ historical methods. The
typical genealogical inquiries associated with the history of international
law, namely, narratives associated with the discipline’s founding fathers,
are not of concern.34 Rather, the book interrogates the justifications,
techniques and legal forms – the matrix of practices35 – that arose in the
past and that resonate today. In so doing, the book uncovers investment
law’s normative ends aimed at producing effects upon its principal target –
vulnerable states and citizens of the Global South.36 What is of interest is
how powerful actors have justified and managed politico-legal orders that
are now mostly discredited – those associated with colonialism, imperial-
ism, civilized justice, orthodox development and debt – that serve strategic
functions today. What is striking is how a matrix of past practices37
31
Orford (2013) at 176. Orford has since authored a book-length response to contextual
historians, identifying a variety of methods and styles that international lawyers can
deploy as they engage with history, in Orford (2021) at 318–19.
32
Orford (2013) at 174.
33
Foucault (1978b) at 86 famously wrote that ‘power is tolerable only on condition that it
mask a substantial part of itself’.
34
D’Aspremont (2020) at 481.
35
The term ‘matrix of practices’ is a mash up of Foucault’s ‘discursive practices’ and his
‘regime of practices’. Foucault describes discursive practices as not confined merely to
what is said but ‘embodied in technical processes, in institutions, in patterns for general
behavior, in forms for transmission and diffusion, and in pedagogical forms which, at
once, impose and maintain them’ in Foucault (1971a) at 200. Bacchi and Bonham (2014)
at 177 describe ‘discursive practice/s’ as ‘Foucault’s primary analytic category’. The term
‘regime of practices’ is described by Foucault ‘as places where what is said and what is
done, rules imposed and reasons given, the planned and the taken-for-granted meet and
interconnect’ in Foucault (1980a) at 248. I prefer ‘matrix’ over ‘regime’ in order to
distinguish this network from the investment law regime.
36
Scott (1995) at 204.
37
No single thread predominates. See Forst (2017) at 45 (‘A modern economy is not based
on a single grand narrative alone’).

 :     
resembles suppositions relied upon at present by investment law’s norm
entrepreneurs (lawyers, arbitrators and scholars who articulate and pro-
mote its disciplines). It is, indeed, remarkable how salient and durable
those methods remain today. These indefensible scenarios continue to
‘yield new damages and renewed disparities’. They are ruinous, in so far as
they continue to justify the maintenance of regimes that ‘lay waste’ to
certain peoples, social relations and environments.38
I characterize this matrix of practices as ‘alibis’ in so far as they provide
cover for a set of rules and institutions – the investment law regime – that
increasingly are indefensible. Legal dictionary definitions of ‘alibi’ treat it
as a ‘defence that places the defendant at the relevant time in a different
place’ than at the scene of a crime.39 It is, in short, an excuse. The plea
serves to place an accused ‘somewhere else’ – to a place before and other
than where the crime occurs.40 One can envisage investment law having its
other places, before having arrived on the scene: in places associated with
colonialism, imperialism, development and debt. Investment law also has
its own excuses which, rather than generating convincing justificatory
narratives, weaken its very foundations. Citizens deserve something more
than historically discredited reasons to justify the exercise of power over
them – something more than mere pretext.41 This is why these tropes serve
as alibis: rules without ‘adequate’ justification and without accompanying
‘discursive arenas’ internal to the regime with which to contest its norms.42
I.1 Foucauldian Frame

The intuitive method applied in this book – the ‘instruments’ deployed
while ‘actually doing’ the research43 – loosely resembles the analytical
tools described by Foucault in The Archaeology of Knowledge.44
38
An understanding of ruination as a ‘process’ is described by Stoler (2013), particularly at
7 and 11.
39
Black (1979) at 61 and Holthouse (1846) at 17.
40
See Derrida (2002) at xxvii.
41
We are ‘justifying beings’, Forst (2017) at 50 reminds us.
42
Forst (2017) at 50–51. Mantena (2010) at 17 distinguishes between ‘justifications’ and
‘alibis’ for empire, identifying a movement away from ambitious universalist and civiliz-
ing justifications for empire in the direction of a pragmatic and tentative mode of empire
associated with ‘indirect rule’ (at 11–12). I prefer, as in colloquial usage, to not distinguish
too sharply between the two (see OED, 3rd, 2012).
43
Foucault (1977a) at 404, translated in Foucault (2003a) at 287–88.
44
Hereinafter Archaeology. By analytics, I borrow Koopman’s distinction between
Foucault’s analytics (or methods) and concepts in Koopman 2014 at 90–91.

.   
Identifying some of the strengths and weaknesses of Foucault’s method
in that book is instructive regarding the method developed here. The
Archaeology is described, even by its author, as a ‘difficult’ read45 and is
considered the least successful of his books.46 It is offered as a ‘precar-
ious’, ‘groping’ and ‘stumbling’ synthesis of previously published work on
madness, medicine and a set of disciplines (nature, political economy and
language).47
Much of Archaeology channels Foucault’s disdain with the history of
intellectual thought. He rejects the progressive narrative that transforms
a ‘tangled mass of continuities’ into a single, ‘uninterrupted’ history.48
Foucault prefers, instead, to treat past statements as revealing ‘homogen-
ous fields of enunciative regularities’ that, together, constitute ‘a discur-
sive formation’.49 Discursive formations are not ‘ideal, continuous, [and]
smooth text[s]’, revealing a ‘calm unity of coherent thought’.50 Instead,
they are discontinuous and ‘governed by distinct laws of formation’.51
Elements of discursive formations can be ‘constituted, modified, organ-
ized’ at one period yet, once ‘stabilized’, can ‘figure in another’52 – they
exhibit, in short, the ‘possibility of transformation’.53 ‘In this sense’,
45
Foucault (1969a) at 62.
46
Consider Kermode’s (1973) at 8 harsh judgment: ‘for the most part an elaborate set of
methodological doodles in the margins of the old . . . one easily grows impatient’.
Compare Deleuze (1988) at 18, who describes the book as a ‘poem of his previous works’.
Rueff comments that the book did not arouse zealous critique, as had Les Mots et les
Choses (The Order of Things, 1970a), but it did sell 11,000 copies in its first year in Rueff
(2015) at 1423.
47
Foucault (1972) at 16–17 and Foucault (1969a) at 61. Foucault’s archaeology was
apparently inspired by prior historians of systems of thought, particularly Georges
Dumézil, in Karup (2021).
48
Associated with the ‘whig interpretation’ of history. See Butterfield (1931).
49
Foucault (1972) at 145.
50
Foucault (1972) at 155 (‘A discursive formation is not, therefore, an ideal, continuous,
smooth text that runs beneath the multiplicity of contradictions, and resolves them in the
calm unity of coherent thought’). Foucault, however, expresses sympathy with Braudel
and the Annales school (Braudel 1958) and its account of history without subjects. On
this opposition, and affinities with third-generation Annales school historians, see Burke
(2015) at 130–31, Hacking (1981) at 29–30 and Dean (1994) at 37–42.
51
Foucault (1972) at 173. See also Foucault (1970a) at 50 (discontinuity begins with ‘erosion
from the outside’, by which he means ‘culture’). Koskenniemi (2001) at 3, 9 is animated
by Foucauldian discontinuities, describing a ‘radical break’ in the field of international
law in the course of the nineteenth century.
52
53
Foucault (1972) at 120. I interpret the call by d’Aspremont (2019), to unlearn accepted
markers, periodisation and causal sequencing as following in Foucault’s footsteps.

 :     
Foucault writes, discourse is ‘an inexhaustible treasure from which one
can always draw new, and always unpredictable riches . . . It appears as
an asset – finite, limited, desirable, useful.’54 Though he emphasizes
discontinuity, Foucault appears even more interested in less obvious
continuities.55
The advantage of this Foucauldian frame is that it underscores how
past discursive formations56 can be recruited and reformed into current
debates, mapping dominant practices, unblocking occluded discourses57
and identifying ‘relations’ that the past have with the present.58
Discursive systems, then, are capable of ‘continuity, return and repeti-
tion’.59 They comprise not only statements that take place ‘once and for
all’ but ‘continue to function’. They are capable of being ‘transformed’
over time, having the ‘possibility of appearing [again] in other dis-
courses’.60 Elements of earlier discourses are, in this way, ‘reworked’
for immediate political ends.61 This reformation, or reinscription,
of elements of past discourses resembles how many informants,
conscripted for the purposes of this book, understand the continuing
presence of colonialism, imperialism, civilized justice, debt and
development.
But worries also arise with the analytics described in Archaeology.
First, Foucault isolates statements, irrespective of the speaker or the
times, which has the effect of radically decontextualizing discursive
formations. His method is concerned only with the ‘pure event’ of
language having taken place independently of linguistic or disciplinary
rules.62 His method ‘eliminate[s] the subject but preserves the thought’, it
is said.63 If this allows us to break up what was said in the past and
54
Foucault (1972) at 120. For a study of contemporary debates over periodization of
international human rights law, see Hoffmann and Assy (2019).
55
‘As you know’, Foucault insisted, ‘no one is more of a continuist than I am.’ To ‘recognize
a discontinuity’, he says, ‘is never anything more than to register a problem that needs to
be solved’ in Foucault (1980a) at 248.
56
Historically ‘definite discursive systems for which it is possible to assign thresholds and
conditions of birth and experience’ in Foucault (1991) at 62.
57
58
Foucault (1972) at 155–56.
59
60
61
Stoler (1995) at 72.
62
Agamben (1999) at 139.
63
Vuillemin, proposing a chair on the ‘history of systems of thought’ to which Foucault was
elected, quoted in Elden (2017) at 11.

.   
appropriate it into new, later, discursive formations, it renders the past as
merely a tool, as ‘an asset’. History appears only to serve – anathema to
those faithful to historical methods – only present purposes.64
Second, by radically decontextualizing what was said, Foucault appears
less concerned with non-discursive factors like political ideologies or
legal institutions and processes. Archaeology appears to rule out the
reciprocal influence of institutions on discourse, creating the ‘illusion’
of an impossible autonomy.65 This amounts to the ‘disinterested study of
mute monuments’, complain Dreyfus and Rabinow, which ‘can never
enter the debates which rage around the monuments its studies’.66 This
helps to explain Foucault’s subsequent turn to ‘genealogy’, a new analytic
layered over the old that links truth statements to power and the func-
tions served by discursive formations.67 Foucault, Hacking insists, was
compelled to ‘return to the material conditions under which words were
spoken’.68
However, it is not quite right to say that Foucault, in the period in
which Archaeology appears, was disinterested in power operating outside
of discourse.69 There are ‘intimations’ of it in Archaeology, Said observes,
though Foucault spends little time on the source of discursive ‘strength
within institutions’.70 The non-discursive element in Foucault, Deleuze
adds, is present but ‘designated negatively’ – it only takes on a ‘positive
form’ once Foucault turns to his work on power.71 If discourse is ‘an
asset’, it is one, Foucault admits in Archaeology, that ‘from the moment of
its existence . . . poses the question of power; an asset that is, by nature,
64
I believe this is what Rasulov (2020) at 9 means by ‘strategic deployment of history . . . for
the purpose of intra-disciplinary ideological programming’ (emphasis in original
removed). It is not quite what Carr (2001) at 117 had in mind when he characterized
as ‘objective’ the historian who interprets the past in order ‘to project his vision into
the future’.
65
Dreyfus and Rabinow (1982) at viii and Gutting (1989) at 259. Deleuze (1988) at
31 intimates that this would have been self-evident to Foucault (‘Naturally, environments
also produce statements, just as statements produce environments’).
66
Dreyfus and Rabinow (1982) at 95.
67
Dreyfus and Rabinow (1982) at 117. Foucault (1985) at 8 acknowledges his debt to
their critique.
68
Hacking (1981) at 33.
69
It is hard to explain Foucault’s earlier work as being preoccupied only with discourse.
‘This defines them far too narrowly’, complains Peltonen (2004) at 210.
70
Said (1982) at 61. What was ‘lacking’ with the problem of ‘discursive regime’, was the
effects of power peculiar to the play of statements’. The ‘central problem of power’ had
not yet properly been isolated’, Foucault (1976a) at 303 admits.
71
Deleuze (1988) at 32 and 49, referring to Foucault (1977b).

 :     
the object of struggle, a political struggle’.72 So the effects of discursive
formations on non-discursive practices is present in Foucault’s approach,
even as he does not actively pursue this interest until he turns his
attention to genealogy.73
Genealogy does not, however, entail a giving up on archaeology but
‘combines it with a complementary technique of causal analysis’, doing
for ‘nondiscursive practices what archaeology did for discursive prac-
tices’.74 This is borne out by Foucault’s declarations in 1976 that he had
not abandoned his earlier method, which focussed on ‘local knowledge of
struggles’. He was now making ‘use of that knowledge in contemporary
struggles’.75 In ‘a nutshell’, he declares, archaeology ‘is the method
specific to the analysis of local discursivities, and genealogy is the tactic
which, once it has described these local discursivities, brings into play the
desubjugated knowledges that have been released from them’.76 In the
following year, he describes archaeology and genealogy as comprising
‘necessarily contemporaneous dimensions in the same analysis’.77
For these reasons, Defert diagnoses genealogy and archaeology not as
antagonistic but as ‘mutually supportive’.78 This becomes apparent as
Foucault takes up his chair at the Collége de France and delivers his
inaugural lecture in December 1970, shortly after Archaeology’s publica-
tion. There, Foucault examines discourse ‘on a different scale’, at the level
of an ‘institutionally constraining system’ that governs our ‘will to
72
Foucault (1972) at 120. ‘Archaeology’, he declares, ‘reveals relations between discursive
formations and non-discursive domains (institutions, political events, economic practices
and processes)’ in Foucault (1972) at 162. Foucault acknowledges, in a set of written
responses to queries, that discursive formations – the ‘whole set of objects, types of
formulation, concepts and theoretical options’ – are ‘invested in institutions, techniques,
collective and individual behavior, [and] political operations’ in Foucault (1968) at 415.
Shortly after Archeology’s publication, Foucault acknowledges that knowledge-savoir is
‘embodied not only in theoretical texts or empirical instruments but also in a whole set of
practices and institutions’ in Foucault (1969c) at 7. Later, Foucault (1980c) at 194 adds
‘architectural arrangements, regulations, laws, administrative measures, scientific state-
ments, philosophic propositions, morality, philanthropy, etc’.
73
Foucault (1969b) at 66. This is the ‘grande rupture’ that distinguishes his earlier works
from his interest in power (‘rapport de forces’) in Gros (2015) at xxiii.
74
Gutting (1989) at 271.
75
76
Foucault (2003a) at 10–11. See also Foucault (1980b) at 83.
77
78
Defert (2013) at 274 quoted in Elden (2017) at 22. Gordon (1980) at 244 calls archaeology
‘essential ground’ for genealogy. For Dean (1994) at 33–34, they are ‘complementary’
though genealogy is ‘clearly dominant’. On applying both methods, see the ‘Introduction’
in Foucault (1985) at 11–12.

.   
know’.79 His genealogical studies, Foucault explains, will explore the
limits of discursive control within and outside formations, ‘or more often
on both sides of the boundary at once’. ‘These two tasks’ – genealogy and
discourse – Foucault declares, ‘are never completely separable’.80 They
must ‘alternate, and complement each other, each supporting the other
by turns’.81
Conjoining discursive practices with understandings about power,
expressed in legal-institutional and processual forms, best captures what
is sought to be accomplished by this book.82 It is not, strictly speaking, a
genealogical approach – resurrecting ‘historical struggles’ and unearthing
‘details and accidents that accompany every beginning’.83 Rather, it
is one that hews more closely to the analytical device Foucault
labelled dispositif 84 – ‘a heterogenous ensemble consisting of discourses,
institutions, . . . regulatory decisions, laws, scientific statements,
philosophical, moral and philanthropic propositions’, incorporating ‘the
said as much as the unsaid’.85 A dispositif exhibits the characteristics of a
‘network’ (or matrix) – a ‘multiplicity of forces’ – that strategically serves
some ‘urgent need’.86 Dispositifs are in the service of manipulating the
79
Foucault (1970b) at 54.
80
Foucault (1970b) at 71.
81
Veyne (2010) at 34 interprets Foucault’s discourse as resting upon ‘not only thought, but
also social classes, economic interests, norms, institutions and regulations’.
82
For a helpful summary, see Graham (2012), though she does not precisely capture my
‘method’. Another account congenial to this one can be found in Escobar (2012) at 11
(paying ‘closer attention to the deployment of the discourse [of development] through
practices’.).
83
Foucault (1980b) at 83 and Foucault (1971b) at 144. Boase (2018) at 325 purports to
employ the ‘historical method’ of archaeology that ‘forms part of a geneaological method’.
I believe there is some confusion here. It would be more accurate to describe the work as
inspired by Foucauldian genealogy rather than archaeology.
84
Translated variously as ‘apparatus’, deployment’, ‘set-up’ and ‘economy of power’. See
Peltonen (2004) at 206, Veyne (2010) at 9, 10, 31 (the set-up ‘consists of laws, actions,
words, and practices that constitute a historical formation’). Rabinow and Rose (2003) at
xv describe it as one of the ‘most powerful conceptual tools introduced by Foucault’.
85
Foucault (1980c) at 194. Also see a similar list in Foucault (1978a) at 59 (‘legislative
elements, rules, material set-ups, authoritative phenomena, etc’. that combine ‘mechan-
isms of coercion and contents of knowledge’). These are arrangements that Foucault’s
translator, Graham Burchell, describes as a both ‘strategic and technical’ in Foucault
(2006) xxiii. It ‘cheerfully intermingles things and ideas (one being that of truth),
representations, doctrines and even philosophies with institutions and social and eco-
nomic practices, and so on’ in Veyne (2010) at 33.
86
If this is an overly long list, it is because this ‘multiplicity of forces’ are the many means by
which power is exercised. See discussion in Bussolini (2010) at 92.

 :     
relation of forces, ‘either developing them in a particular direction,
blocking them, stabilising them, utilising them, etc.’87 This interplay
between the discursive and non-discursive, between the semantic and
the material88 – a ‘strategy/imperative’ side that is combined with a
‘practice instantiation’ side89 – is a ‘productive instance of discursive
practice’ in so far as it exerts power,90 normalizes relations of domination
and subordination, and even occasionally precipitates resistance.91 The
book leans precisely in this direction: it illustrates how narratives and
forms that buoyed colonialism, imperialism, debt and development con-
tinue to circulate in investment law’s domains, unearthing the shaky
foundations upon which the investment law edifice is built. It is an
exercise that unearths the dispositif – the ‘knowledge–power interplay’92 –
that sustains a regime-specific subfield of international law.
One last thing to note about the advantage of adopting something
analogous to a Foucauldian frame: it does not require weighing into the
debate over whether there is uninterrupted continuity between a dis-
credited past and contemporary international law. If the matrix of
practices identifiable in the past are manifest in the meaning of invest-
ment law, then quarrels over investment law’s lineage are elided and a
different question is asked: what rationales, tropes and methods arising in
the past endure in investment law’s domains?
I.2 Outline of Book

Having identified some affinities between the method employed in this
book and Foucault’s analytics, it remains only to summarize the book’s
contents. Chapter 1 identifies discursive threads between historic coloni-
alism and the contemporary regime for the protection of foreign invest-
ment. They concern a single-minded focus on profitability and privilege,
the claim that domination produces economic improvement, a prevailing
87
Foucault (1980c) at 195–96. Summed.
88
Raffnsøe, Gudmond-Høyer and Thaning (2016).
89
Dean (2016) at 106–07.
90
A dispositif of power ‘is a productive instance of discursive practice’, Foucault declares in
(2006) at 13. See also Jessop and Sum (2014) at 114–15.
91
On Foucault’s dispositif enabling resistance see Frost (2019) at 162 (‘the dispositif shows
us that resistance is always possible, and that power is never totalizing’). Also see Butler
(2004) at 193 (the ‘conditions for revolt’ are ‘also occasioned by submission’) and the
possibility of ‘reversibility’ in Foucault (1978a) at 66.
92

.    
distrust of local self-rule and the construction of enclaves that preserve
legal entitlements for privileged classes of foreigners. Each of these
features, found in colonial forms of argumentation documented by
Albert Memmi, Frantz Fanon and others, are inscribed in the discourse
and practices of investment treaty law and arbitration. They are also
recurring motifs in many of the chapters that follow.
In Chapter 2, the affinities with imperial legal forms are highlighted,
drawing upon Mohammad Bedjaoui’s book-length intervention in sup-
port of the NIEO. The chapter invokes the distinction between ‘formal’
and ‘informal’ empire and postulates that contemporary investment
law exhibits affinities with informal empire but also reveals aspects of
formal empire. The chapter highlights how contemporary legal rule
constrains political capacity in the periphery as did imperial rule via
formal and informal means. Rule by imperial law, however, is today
conducted in such a manner as to seemingly separate metropolitan
interests from legal outcomes. It also has the potential of constraining
states both in the periphery and at the centre of the investment rules–
making machine, rendering outcomes seemingly more impartial and,
therefore, more legitimate.
Chapter 3 turns to the discourse of civilized justice, prevalent at the
turn of the twentieth century, which is being replicated methodologically
in investment law circles, so that a functional equivalent to the standards
of civilized justice continues to operate. International investment lawyers,
I argue, deploy simplistic comparative methodologies that reproduce
historic domination by powerful capital-exporting states. The choice of
country models is highly selective and productively so. By preferring to
conscript the easily retrievable law of the Global North into general
principles of international law, scholars reinforce extant power relations
rather than realigning them in new directions.
Chapter 4 connects damage awards – the principal means of enforcing
investment treaty disciplines – with the ruination produced by the debt
crisis of 1980–89, when newly decolonized states experienced forms of
tutelage at the hands of international financial institutions, acting at the
behest of states home to powerful creditors. Beginning with a social-
theoretical discussion of how debt serves to curb the possibilities for
political action, International Monetary Fund (IMF) borrowing practices
in the 1980s are reviewed and then followed by a discussion of the
merits of comparison with contemporary investment law. The narrative
frames arising during the 1980s debt crisis that resonate in the era of
investment treaties are taken up in subsequent sections. In the course of

 :     
the discussion, the Tethyan Copper award (a US$6 billion award against
Pakistan for expropriation of an undeveloped mining site) is periodically
discussed. The aim is to reveal that indebtedness in the contemporary
world serves functions similar to those in the 1980s, namely, to constrain
public capacity in a wide range of sectors.
Chapter 5 compares the capacious understanding of property that is
protected by investment law with its threatening ‘other’: Indigenous
understandings of law and rights. If colonial power was exercised by
settlers taking lands from Indigenous peoples, contemporary legal rela-
tions appear to reinscribe a similar disregard for Indigenous rights. Not
only is there indifference, there also is complicity in their violation. This
is exhibited by investment tribunal disinterest in penalizing investors for
the exacerbation of, and responsibility for, intersocietal conflict that has
led to dispossession, violence and even death. A sampling of cases reveals
that tribunals prefer not to reject investor claims, or reduce damage
awards, in circumstances where investors have been implicated in this
maltreatment and subjugation of Indigenous peoples. What is revealed is
that international protections for metropolitan-based entrepreneurs con-
solidate victories secured by the internal colonialism of Indigenous
peoples in the Americas.
Finally, Chapter 6 envisages alternatives paths to development by
examining proposals aiming to realign relations between subordinate
states and dominant home states and their multinational allies. Rather
than exhibiting continuity, it is a good example of discontinuity, where
discursive possibilities get displaced by the power of investment law.
Displaced are fifty-year-old proposals aimed at facilitating the divestiture
and exit of foreign investors introduced by Argentinian economist Raul
Prebisch and elaborated upon by US-based economist Albert Hirschman.
The chapter begins with a discussion of what is labelled constitutional
dispossession before turning to a discussion of the Prebisch–Hirschman
proposal. The advantages of the divestment proposal are then identified
and applied to the award in Bear Creek v. Peru, a dispute prompted by
the revocation of a mining licence granted to a Canadian investor to
which Aymara Indigenous communities in Peru were vociferously
opposed. There is no expectation that reforms to roll back the regime
will get taken up by influential legal advisors and their state clients.
Rather, the object is to reimagine the status quo and reflect upon the
prospects of far-reaching change.
In the Conclusion, the question is posed as to whether the investment
treaty regime is capable of being liberated from its discredited ancestry in

.    
justifications that supported colonialism, imperialism, civilization, debt
and orthodox development. Powerful discourses, such as ones underpin-
ning the investment law regime, succeed and endure to the extent that
they inhibit alternative accounts. Why should those proffering alternative
readings be ignored or silenced when, cumulatively, the effects of this
regime are being made material every day? These discursive strategies are
successful only in so far as citizens and states of the Global North insist
on continuing to write the rules of the game, facilitating silence of the
subjugated and refusing to acknowledge that the marginalized deserve a
hearing via a genuine exchange of ‘experiences and meanings’ that can
form, per Quijano, the ‘basis of another rationality which may legitim-
ately pretend to some universality’.93 Such a hearing must take place far
away from the rarified confines of conference rooms where investment
claims are pursued or the corridors of power where international diplo-
macy exerts its force. This book aims to help push that agenda forward by
exposing the resilience of older, ruinous discourses that have resonance
in today’s more refined international legal settings.
93
Quijano (2007) at 177.

1
Colonialism of Investment Law
Does international investment law perpetuate relations of domination

and subordination reminiscent of historic colonialism?1 Colonialism is
premised upon the idea that the vast majority of the world’s peoples,
lands and resources are candidates to be conscripted for the purpose of
satisfying the needs of the metropole. If this project of domination has
not abated, should we understand colonialism as not to have ended with
decolonization? Has it, instead, taken on new and variable forms, including
legal forms? Did arguments favouring colonialism – its set of justifications
and governing practices – cease in the second half of the twentieth century
or have those arguments taken on new life as ‘governing statements’ in
contemporary times?2 This chapter examines these potential discursive
continuities, inquiring into whether new forms of legal rule continue to
serve primarily metropolitan economic interests.3
If colonialism in all its forms has not abated, then it could be said that
the relationship between hegemonic capital-exporting states in the Global
North and those in the Global South continues to be one of ‘colonial
domination’. Annabel Quijano coined the term ‘coloniality’ to capture this
relationship.4 Scholarship on coloniality stresses the epistemological
dimension of colonialism.5 Emphasis is placed upon how the ‘imagination’
of the colonized is ‘seduced’ by European narratives of modernity that
perpetuate the supremacy of European culture. Coloniality, according to
this account, reveals an ‘embedded logic that enforces control, domination
and exploitation disguised in the language of salvation, progress, modern-
ization, and being good for everyone’.6 This is the ‘underside’ of modernity
1
This is Santos’ term (2018) at 109. Grosfuguel calls it ‘classical colonialism’ in (2011).
2
3
El Habbouch (2019) at 3.
4
Quijano (2007) at 169. Baxi labels this ‘postcolonial legality’ in (2000) and (2012).
5
Mignolo (2018) at 121.
6
Mignolo (2005) at 4, 6.


    
that is meant to ‘disqualify’ those who do not belong to the inevitable
progress of history.7 The means by which dominant narratives get per-
petuated via institutional forms does not get as much attention, however.
This chapter aims to reveal how narratives of European supremacy are
institutionalized through methods and forms of legal rule; in particular,
rule under international investment law. In this way, both narrative and
structure make material the logic of coloniality.8 The narratives of mod-
ernity familiar to investment law – development, rule of law and good
governance – are conjoined with muscular rules and institutions that
disguise the presence of coloniality.9 Knitting together narrative with legal
rule, I draw upon descriptions of colonial rule by, among others, the
Tunisian writer Albert Memmi. His Colonizer and the Colonized, origin-
ally published in French in 1957, offers a piercing sociological portrait of
the European colonizer, which is the focal point of the discussion that
follows.10 Colonialism, of course, was not experienced uniformly every-
where.11 It was, instead, experienced differently at different times and in
different places. Memmi’s account should be accepted as a version of that
experience in French colonial Algeria – in passing, British colonial India is
also mentioned. The discussion is offered, therefore, not as an exhaustive
account of colonialism over time but as a selective one that displays the
matrix of practices associated with colonialism that has resonance today.
Memmi’s book is pretty much neglected,12 unlike another classic of
anti-colonialist thought, Frantz Fanon’s The Wretched of the Earth, oft-
mentioned alongside Memmi’s.13 Fanon’s account describes the
Manichean struggle between colonizer and colonized and then turns to
the situation of the colonized, in the remaining part of the book, after the
‘cleansing force of violence’ enables a new ‘beginning’, one without the
7
Mignolo (2005) at 4, 6.
8
Mignolo also emphasizes structure in (2005), for example at 7.
9
10
Memmi (1991).
11
Osterhammel (1997) at 107 (generalizing risks ‘extreme oversimplification’). On colonial
varieties, its discontinuities and differing political rationalities, see Scott (1995) at 197.
12
This probably had something to do with his expressions of disappointment in the
governments produced out of liberation struggles, chiding them for being narrow-
mindedly corrupt and ineffective in Memmi (2006). This later book was received as a
betrayal for placing blame primarily upon newly liberated nations while mostly ignoring
the role of the colonial powers in ruling the structures of international political economy.
On its unwelcome reception see McBride (2011) and Salessi (2013).
13
Said (1993) at 328 describes Memmi’s book as ‘more simpl[e]’ than Fanon’s account
of colonialism.

    
colonizer.14 Memmi, by contrast, aims to describe the mindset of both
sides operating in colonial settings. Memmi described his 1957 effort as a
portrait of ‘two protagonists of the colonial drama’ – a ‘human balance
sheet’ of the costs of colonialism.15 Memmi felt himself in a position to
undertake these diagnoses because he viewed himself as an outside obser-
ver. As a Tunisian Jew, he was a minority within a minority and well placed
to observe the effects of colonialism on all actors within the colony. He
declared that he ‘understood everyone because he belonged to no one’.16
Many of Memmi’s observations about that engagement resonate, I argue,
in the context of investment law. In particular, Memmi’s account of the
colonizer well represents the mindset of the international investment
lawyer. It is this decisive ‘social carrier’17 that will stand in for Memmi’s
‘colonizer’. The legal profession, after all, spearheaded the institutional-
ization of investment arbitration and remains its most ardent defender in
the public sphere.18 The advantage of choosing Memmi is that he imagines
the mindset of the colonizer in ways that Fanon – whose focus on the
violence perpetrated by the colonizer as experienced by the colonized –
does not.19 He turns out to be a helpful guide to thinking about legal
relations between foreigners and locals locked in struggles over self-rule.
14
Fanon (1966) at 40, 30, 73, 56.
15
Memmi (1991) at 147. The two sides are not treated as unitary entities but as exhibiting
some differentiation within. In his ‘portrait of the colonizer’, for instance, Memmi
distinguishes between the ‘colonizer who refuses’ and the ‘colonizer who accepts’ in
(1991) at xix.
16
Memmi (1991) at xvi. Some have hypothesized that the experience of anti-Semitism is
akin to the experience of racism. This may have rendered Memmi in the position of
standing in the shoes of both. Memmi adopts precisely this standpoint in his Portrait of a
Jew (1971) at ix (recalling The Colonizer and the Colonized, Memmi recognizes ‘mechan-
isms common to all oppressions’ in which ‘each possesses specific traits’. Anti-Semitism,
he writes, ‘had an indispensable place in a general picture of contemporary oppression’).
17
Weber (2009) at 152.
18
See Sornarajah (2015) at 29–30; St. John (2018) at 41.
19
Memmi’s analysis is less effective in so far as it does not take more seriously political
economy as a heuristic. He mentions ‘economic liberalism’ only in passing in (2006) at
134. Fanon’s Marxist leanings, by contrast, lead him to be more preoccupied with
economic power and the ‘redistribution of wealth’ in Fanon (1966) at 78. Memmi,
instead, eschews the undercurrent of Marxism present in Fanon’s work. On Memmi’s
evaluation of Fanon, whom he personally knew in Tunis, see Memmi (1973). Fanon
predicted that, in the period of decolonization, multinationals would lay down conditions
that are ‘inacceptable or unrealizable’ and ‘openly hostile’ to these newly formed govern-
ments. Unwilling to undertake any risk, they ‘demand political stability and a calm social
climate which are impossible to obtain when account is taken of the appalling state of the
population as a whole immediately after independence’ at 81–82.

    
It should be acknowledged that this portrait of investment law will be
resisted by many of its personnel. The regime is constructed by sovereign
states after all and is, therefore, founded upon the consent of the peoples
bound to it.20 The regime, it is said, is not premised upon conceptions of
race and civilization as were historic colonial legal orders. It is, instead, a
legitimate and normatively desirable means of ordering state behaviour.
Analogies between investment law and colonialism will, therefore, be
resisted if not dismissed out of hand. Yet, as I argue in this chapter, the
analogy is illuminating. Even if the colonial age has passed, writes
Alvarez, the contemporary regime not only has a more extensive reach,
it is also more efficacious than was colonial rule.21 Linarelli, Salomon and
Sornarajah are also less inclined to ignore linkages between past and
present. They claim that the international legal order ‘perpetuates colo-
nialism’ yet is ‘more effective’ than have been discursive strategies about
‘civilizing [the] barbarous peoples of the colonies’.22 By seeking to fill the
content of treaty standards of protection with reference to the law of
capital-exporting states, investment law has the effect of discarding legal
experiences that are dissonant with prevailing accounts.23 In which case,
the preferences of powerful capital-exporting states continue to deter-
mine the content of international law. Which is not to say that the
contemporary world perfectly exhibits features of historical colonialism,
only that there remain threads of discursive continuity between the
colonizers and international investment lawyers.
The tropes connecting historic colonialism and the contemporary
regime for the protection of foreign investment concern such things as
profitability and privilege (Section 1.2), the discourse of improvement
(Section 1.3), distrust of local self-rule (Section 1.4) and the construction
of legal enclaves (Section 1.5). Each of these features, I argue, is inscribed
in the discourse and practices of investment treaty law and arbitration.
These tropes exhibit the ‘mechanics’ by which the ‘other’ is constituted.24
There are, of course, dangers in transporting ideas and practices across
time and space, ripping them out of their historical context. If dangerous,
it also offers the prospect of shedding light on features of current
20
Clayton v. Canada at para. 438.
21
Alvarez (2009) at 950. It ‘is not the law of any one national empire’, writes Alvarez, but is
better characterized ‘as the empire of law’ (at 973).
22
Linarelli, Salomon and Sornarajah (2018) at 147. Sornarajah asks elsewhere if history is
‘repeating itself’ in (2010) at 19.
23
Santos (2007).
24
Spivak (1988) at 294.

    
international legal practice. The point of theory, Said reminds us, is ‘to
travel, always to move beyond its confinements, to emigrate, to remain in
a sense in exile’.25 It is also the task of ‘traveling theory’ to be aware of
differences in situations and of the ‘fact that no system or theory exhausts
(or covers or dominates) the situation out of which it emerges or to
which it is transported’.26 I make no claim, in other words, that the
portrait offered herein exhausts the colonial analogy or the possibility for
critical analysis. There surely are other heuristics that can be conscripted
to critically evaluate the investment law regime. This chapter is offered,
instead, as an encouragement for further inquiry.
1.1 Why Coloniality?

Nomenclature can contribute to confusion.27 For instance, colonialism
and imperialism are typically used interchangeably. For the purposes of
this book, I prefer to treat imperialism and colonialism as distinct, if
related, phenomena. Colonialism as used herein is characterized by
foreigners settling in colonies while living in close proximity to, and
governing, colonial subjects.28 Imperialism, by contrast, is understood
to be a ‘geographically extensive’29 system of rule in which metropolitan
centres rule at a distance.30 Imperial authority – these ‘fully armed
business concerns’31 – instructs colonists how to govern even as their
rules have not always fit well with conditions on the ground.32 If colonies
are understood as comprising ‘individual settlements’, imperialism
‘includes the totality of settlements from the point of view of the
25
Said (2000) at 451.
26
Said (1982) at 59.
27
‘Postcolonialism’, writes Baxi, ‘is a troubled continent of contested conceptions’ in (2000)
at 540.
28
Fanon (1967a) at 81 defines colonialism as ‘the conquest of a national territory and the
oppression of a people: that is all’.
29
Young (2015) at 9.
30
On action at a distance, see Latour (1987) at 219–23. This is discussed further in
Chapter 2.
31
Arendt (1958) at 126.
32
On the distinction between colonialism and imperialism, see Said (1993) at 8 and
Osterhammel (1997) at 15–22. Hobson (1902) at 4–5 describes as ‘colonialism’ the
migration of Europeans abroad, as an extension of nationality, and imperialism as rule
of an ‘alien and subject people’. Most British colonies, outside of Canada, Australia and
South Africa, were, for this reason, ‘representative of the spirit of Imperialism’. On the
difficulty of carrying out metropolitan visions, see Koskenniemi (2016b) and, in British
North America in particular, Schneiderman (2017b).

.  ? 
metropolis’, serving as the ‘center of imperial administration’.33
Imperialism, therefore, is usually eager to absorb more settlements and
greater territory.34 In this way, imperialism may or may not accompany
forms of colonialism, but there is no colonialism without imperialism.35
It can be argued, then, that the investment law regime exhibits char-
acteristics of imperial rule (as suggested in Chapter 2).36 It could also be
said that the colonial analogy is apt. Foreign investors are worthy of
special protection under international law, it is claimed, because they are
exposed to host state political risk once they enter the geographic space of
the host state. It is the dislocation from the host country accompanying
fixed investments abroad, and the resulting immobility, that renders
investments and investors vulnerable to the political risks associated with
such things as ‘obsolescing bargains’.37 Though the basis for the vulner-
ability of investors to host state exigencies is empirically suspect,38 it is
the geographic proximity of investors to host states and their citizens that
suggests affinities to colonialism. Both for historic colonialism and the
contemporary regime of investment law, colonizers and foreign investors
have had to navigate relations with allegedly ‘unreliable’ hosts.39
Anghie persuasively argues that international law and colonialism are
intimately connected in so far as basic international law doctrines were
‘forged out of the attempt to create a legal system that could account for
relations between the European and non-European worlds in the colonial
confrontation’.40 Anghie draws out this lineage from governance prac-
tices under historic colonialism to contemporary rules of ‘good govern-
ance’ espoused by international law and allied institutions.41 They have
both sought to manage and control states through the guise of universal
standards, namely, rules authored by actors in the Global North that
advance primarily their own interests. ‘The colonial history of inter-
national law is concealed even when it is reproduced’, he writes.42
33
Young (2015) at 29, 58.
34
Lenin (1975) at 85.
35
Loomba (1998) at 6–7.
36
For example, Alvarez (2009) and, generally, see Tully (2008a). As mentioned, however,
empire is not the focus of this analysis.
37
See Vernon (1971).
38
See the corrective empirical evidence in Aisbett (2010).
39
The adjectives ‘lazy’, ‘impertinent’ and ‘child-like’ will also often be heard voiced under
either regime of rule. See discussion in text associated with notes 98–102, infra.
40
Anghie (2004) at 3.
41
Anghie (2004) at 5.
42
Anghie (2004) at 268.

    
As in the case of colonial rule, capital-exporting states aim to govern
others by having them adopt, if not replicate, idealized paths to economic
success, paths that are defined by those same powerful states.43 Capital-
importing states are expected to follow suit by abiding to a common set
of rules set not by themselves but by others.
Theorists of coloniality similarly reject modernity’s Eurocentric prem-
ises that ‘hide or disguise’ what cannot be said explicitly.44 If ‘coloniality
names the destitute and the processes of destitution’, decoloniality’s task
is to ‘unveil this logic and these processes’.45 The research project aims to
discard triumphalist Eurocentric narratives in favour of a research
agenda that aims to recover subaltern knowledges and cultures.46
Rather than substituting one universalistic and totalizing claim to know-
ing in favour of another, scholars of coloniality acknowledge that there
will be a plurality (a ‘diversality’) of previously disqualified ways of
knowing that call out for acknowledgement and engagement.47
Using Bourdieu’s reflexive sociology, we might characterize the project
as revealing the ‘arbitrary’ origins of the universal.48 This ‘forgetting’ of
the ‘originating historical conditions’ that produces universality obfus-
cates the partial sources for prevailing rules.49 The task is to uncover the
roots of legal arbitrariness associated with the mechanisms by which
coloniality is made manifest, in this instance, by investment law’s stand-
ards of protection. The object, then, is to demolish the European ‘house
of universal fictions’.50 England would cease to be the universal standard
for ‘everything’, as Bentham preferred.51 ‘The unilaterally decreed nor-
mative value of certain cultures deserves our careful attention’, warned
Fanon.52 By scrutinizing such unilateral declarations, we take steps along
the path towards decolonial thinking.
Deviation from universal standards was justified, in the past, by a
‘colonial exception’. This norm–exception ‘structure of justification’,
43
On the idealized nature of these paths to economic success, see Chang (2002) and (2004)
and as ‘origin myth’ see Dussel (2000).
44
45
46
The research agenda is helpfully summarized in Escobar (2007) at 184.
47
Grosfuguel (2011).
48
Bourdieu (2014) at 121.
49
Bourdieu (2000) at 65.
50
51
Bentham quoted in Chatterjee (2011) at 6.
52
Fanon (1967a) at 31.

.  
observes Chatterjee, provided the grounds for intervening in the lives and
government of the colonized in order to ‘bring the empirical average
closer to the desired norm’.53 The same norm–exception paradigm
continues to operate in the contemporary world, but the question now
is who today gets ‘to declare the exception’?54
It bears mentioning that there are other scholarly approaches – as
suggested by the reference above to Chatterjee’s work in subaltern and
postcolonial studies – that pursue similar lines of inquiry with similar aims
in mind, namely, of ‘thinking otherwise’; of imagining not just alternative
futures but other ways of thinking about alternatives. It may not be
necessary to adopt ‘coloniality’ as the research frame (that is, use this
literature as a springboard for analysis) – instead there are alternatives like
subaltern and postcolonial studies. No ‘new term is really needed’, main-
tains Santos.55 Decolonial thinking, nevertheless, has the advantage of
uncovering linkages while insisting that we cross over seemingly impene-
trable lines that allow for engagement with histories that are otherwise
displaced or marginalized. The intellectual project of decoloniality,
moreover, is promiscuous – open to a variety of disciplines (it is ‘trans-
disciplinary’) and open to scholarship from many locales.56 I turn next
to some of the justifications, tropes and methods that helped sustain
colonialism and whose vestiges appear in investment law’s domains.
1.2 Profitability
At ‘the heart of the colonial relationship’ was profitability and privilege.57
According to Memmi, the ‘best possible definition of a colony [is] the
place where one earns more and spends less’.58 Moving to a colony is a
‘voyage to an easier life’. The change of residence ‘must first of all bring
53
Chatterjee (2011) at 11.
54
For Schmitt (1932) at 38 it has always been the sovereign who is the ‘decisive entity’ for
this purpose.
55
Santos (2018) at 110.
56
The intellectual project of decolonization, moreover, is promiscuous – open to a variety of
disciplines (it is ‘transdisciplinary’) and open to scholarship from many locales. See
Escobar (2007) at 190.
57
Memmi (1991) at xii.
58
Memmi (1991) at 4. Alvaredo, Cogneau and Piketty (2017) at 12 (‘In summary, top-rich
French and European settlers enjoyed the living standard of the top-rich metropolitans,
but only “relatively”. While their share in the colony’s income exceeded the one of their
French counterparts, they earned much lower incomes, by a factor of 0.2 to 0.6’). This
does not quite capture the purchasing power of colonists, however.

    
substantial profit’.59 He creates not only ‘a place for himself’, observes
Memmi, but grants ‘himself astounding privileges . . . upsetting the
established rules and substituting his own’.60 Mérignhac in
1912 described the colonizer in precisely these terms, as one who ‘puts
oneself in relation to new countries in order to profit from the resources
of all kinds in them’.61 A ‘host of advantages’ accrued to metropolitan
companies doing business in the colonies, most of them ‘imposed unilat-
erally by the mother country’.62 Empirical studies reveal, for instance,
that UK-based company revenue derived from activity in the British
colonies was significantly higher in the period 1938–57 than the revenue
it derived from other less developed countries.63 Public expenditure in
the French colonies is described as having been ‘biased and costly’ as it
served primarily ‘the interests of French settlers and capitalists’ – high-
salaried colonial public servants and military personnel demanded no
less.64 This is why Walter Rodney could declare in his classic 1972 text,
How Europe Underdeveloped Africa, that when colonialists spoke about
‘the maintenance of law and order’ they were referring to ‘the mainten-
ance of conditions most favourable to the expansion of capitalism and
the plunder of Africa’.65
Protecting profitability and privilege is not an unfamiliar goal of the
investment law regime. It remains difficult for investment lawyers to claim
any other objective as having more of a priority than ensuring foreign
investors a return on their investments. Dispute settlement is available
exclusively to investors (and home states) against host states.
Counterclaims by host states against investors are rarely permitted, never
mind succeed.66 The substance of investment protections is directed
primarily at vindicating the economic interests of foreign investors and
not any other actors. There simply is no other or higher priority. Some say
that the regime is preoccupied with protecting investment abroad not
59
Alvaredo, Cogneau and Piketty (2017) at 3–4.
60
Alvaredo, Cogneau and Piketty (2017) at 9. See further discussion in Section 1.5.
61
Mérignhac (1912) at 205 quoted in Mbembe (2017) at 66 (‘Coloniser, c’est se mettre en
rapport avec des pays neufs, pour profiter des ressources de toute nature de ces pays’).
62
Svedberg (1982) at 22.
63
Svedberg (1982) at 279–80.
64
Cogneau, Dupraz and Mesplé-Somps (2018) at 4.
65
Rodney (2012) at 164. The ‘colonial state used law, taxation and outright force to make
Africans pursue a line favorable to capitalist profits’ at 165. Though there were variations
between colonial states. Frankema (2010) concludes that ‘fiscal regimes were predomin-
antly determined by local circumstances’ at 448.
66
Davitti (2019) at 160–66 (on the failed counterclaim in Urbaser 2016).

.  
because it protects the economic assets of property holders but because it
offers ‘protection . . . as a special type of economic cooperation’.67 This
rationale, one of promoting economic liberalism, requires that investor
profits are not substantially diminished due to political risk. In accordance
with a ‘developmentalist’ mindset, there simply are no means by which
economic cooperation can be promoted other than by securing profits.68
Investment arbitrators and scholars often are not shy about admitting
this. The substance of interviews Tucker undertook with arbitrators
reveals that the same message was being transmitted: ‘treat foreigners
better than your own people’.69 Investment protections, they frankly
acknowledge, are about ensuring an ‘ability to make a profit’.70
Admittedly, the regime is not about guaranteeing profits per se but
ensuring that profits are not impeded by state action running afoul of
expansive treaty protections. These standards of protection guarantee ‘to
investors the kind of hospitable climate that . . . insulate them from
political risks or incidents of unfair treatment’, claimed the Pope and
Talbot tribunal.71 Political interference, via legislation, regulations or
executive action, runs the risk of denying investors a fair return on their
investment even after they are induced to invest. Investor protections,
observes the Tecmed tribunal, is ‘intended to strengthen and increase the
security and trust of foreign investors that invest in the member States,
thus maximizing the use of the economic resources of each Contracting
Party by facilitating the economic contributions of their economic oper-
ators’.72 In short, says another arbitrator, investor protections reassure
investors that ‘they are not going to lose their money’.73
If that is the primary goal of the mission, it turns out not to be so
effective in recouping investors’ losses. If we accept International Centre
for the Settlement of Investment Disputes (ICSID) statistics as represen-
tative of outcomes across arbitration facilities, states win roughly a third
of the time, investors another third of the time and a third of disputes are
settled. As a matter of course, settlements are more likely to involve
payments to an investor. According to one study, settlement payouts are
not smaller than amounts awarded by arbitration tribunals. Settlements
67
Voss (1982) at 686.
68
On developmentalist ideology, see Grosfuguel (2000).
69
Tucker (2018) at 68.
70
Suez (2010) at para. 231.
71
Pope and Talbot (2000) at para. 116.
72
Tecmed (2004) at para. 156.
73

    
are ‘considerably lower’, however, when an investor’s home state is a
developing state.74 In which case, we can conclude that the regime is as
likely to favour states as investors. This is probably as arbitrators would
prefer it – they would like to appear to be even handed. At the same time,
financial awards have been, on average, less than the damages claimed
even as they are rising in size.75 There is a good chance, then, that
investors will, after tribunal, facility and legal fees are paid, barely recoup
their loss. The regime needs, in short, more truth in advertising.
1.3 Improvement
Improvement was central to the colonial mission. Colonized peoples, it is
claimed, also ‘profited’ from colonization. Did the colonizer not ‘open
roads, build hospitals and schools’, Memmi asks?76 Railways were con-
structed and employment opportunities grew as did public expenditure.
Development, in other words, was a cornerstone of the colonial enter-
prise. This is how Guha understands the colonial mission in India.
A discourse of improvement was advanced by metropole authorities so
as to persuade colonial subjects that ‘imperial dominance [was] accept-
able, even desirable’. Western-style education, standardization of weights
and measures, legislation to ensure the smooth operation of markets
across vast geographic distances and a ban on sathi (widow burning)
were all introduced into India by British colonial administrators.77
Tharoor’s book-length accounting of the ‘benefits’ accruing to India in
its economic, social and political domains is unambiguous: Britain’s
colonization of India was ruinous. In terms of wealth creation alone,
the British extracted £18 million per annum between 1765 and 1815.78
The caste system was exploited to ‘create perceptions of difference’,
preventing political unity and ‘justifying British overlordship’.79 The legal
and political system was designed solely to benefit the colonizers,
destroying familiar practices and structures, rather than serving the
interests of the colonized.80 A similar accounting of colonialism in
74
Ubilava (2020) at 548–49 (a study of 133 settled cases of which 86 provided specific
information about the amount claimed at 541–42).
75
Franck (2019) at 173–74. See the discussion in Chapter 5.
76
Memmi (1991) at 113.
77
See Guha (1997) at 31 for a more complete listing of colonial achievements.
78
Tharoor (2016) at 9.
79
Tharoor (2016) at 110.
80
Tharoor (2016) at 89. These were ‘enabling violations, in Spivak (1999) at 371.

.  
Africa, undertaken by Rodney, suggests similar outcomes. ‘The only
positive development in colonialism’, Rodney concludes, ‘was when it
ended.’81
Why assume that colonial societies would have remained static with-
out the active intervention of colonialism? It is difficult, if not impossible,
to conclusively answer this historical counterfactual. Memmi, however,
does not hesitate to issue a verdict. ‘After decades of colonization’, he
writes, ‘the multitude of children in the streets is greatly in excess of those
in classrooms, the number of hospital beds is pitiful compared to the
number of sick; the purpose of the highway system is without regard to
the needs of the colonized – but absolutely in line with those of the
colonizer.’ He concludes that for ‘so little gain, colonization was truly not
indispensable’.82 The same can be said of investment treaty law and
arbitration. ‘Poverty remains endemic’83 and inequality of wealth within
and across states grows.84
A discourse of improvement is central to international investment
law’s premises, nevertheless. It is the promise of economic development
that helped spread investment law’s reach. Yet it is reasonably clear that
the correlation between signing bilateral investment treaties (BITs) and
attracting new foreign direct investment (FDI) is tenuous at best.85 In a
sample of twelve states, BITs do not attract ‘development-enhancing
FDI’, the authors of one study conclude.86 A meta-analysis of existing
empirical evidence addressing this correlation finds that the effects
appear to be ‘economically negligible’.87 An Organisation for Economic
Co-operation and Development (OECD) paper summarizing the state of
the empirical evidence reveals that ‘the vast majority of the existing
81
Rodney (2012) at 261 (the ‘supposed benefits of colonialism’ are discussed in Chapter 6).
As a consequence of colonialism, ‘extraordinary possibilities were wiped out’, Césaire
alleges (1972) at 43.
82
Memmi (1991) at 113. See also Césaire (1972) at 42.
83
Linarelli, Salomon and Sornarajah (2018) at 168.
84
Perrone and Schneiderman (2019). See Chancel, Piketty, Saez, Zucman, et. al (2022) at 10.
85
According to Bonnitcha, Poulsen and Waibel’s assessment, ‘the literature suggests that
investment treaties do have some impact on some investment decisions in some circum-
stances, but they are unlikely to have a large effect on the majority of invetsment
decisions’ in (2017) at 166 (emphasis in original).
86
Colen and Guariso (2013) at 156 (a study of twelve central and eastern European states
challenges ‘the idea that BITs are a desirable policy tool to enhance development’).
87
Bellak (2015) at 19. This result is confirmed in Brada, Drabek and Iwasaki (2021) at 58
(the effect on FDI is ‘so small as to be considered as negligible or zero’) but the authors
acknowledge that better research methods may find a ‘small positive effect’.

    
studies do not offer a satisfying answer to the question whether inter-
national investment agreements (IIAs) influence capital allocation in
treaty partners’.88 Despite the expectation on the part of capital-
importing states, BITs have not brought the kind of investment, includ-
ing technology transfers and gainful employment, promised by the
regime’s purveyors.
Taylor St. John helpfully documents the origins of the Convention on
the Settlement of Investment Disputes, a multilateral treaty negotiated
under the auspices of the International Bank for Reconstruction and
Development (IBRD, forerunner to the World Bank). Under the auspices
of the convention, the dispute settlement facility, ICSID, operates as part
of the World Bank Group. Aaron Broches, executive director of the IBRD
and the lead lawyer driving the process of ratifying the convention,
typically spoke only of ‘improving the investment climate’.89 The words
of this central protagonist, St. John writes, ‘left the lingering impression
of additional foreign investment’. However, Broches ‘rarely made direct
claims that access to ICSID arbitration would result in additional inward
investment’.90
Others were less reticent about linking new investment to signing
investment treaties with investor–state dispute settlement. The United
Nations Conference on Trade and Development (UNCTAD) actively
promoted the signing of BITs throughout the 1990s, the take-off period
for the spread of investment treaty obligations via BITs. According to
Poulsen, ‘UNCTAD kept spreading the message: “sign BITs to get
FDI.”’91 Even now, tribunals repeatedly declare that the object and
purpose of the investment treaties is to promote investment flows across
national borders.92 This is the to-be-expected benefit of joining the most
muscular of all international legal orders. Investment scholars and arbi-
trators make similar unverified claims.93 Professor Dolzer describes BITs
‘as a key instrument to promote the flow of investment between countries
88
Pohl (2018) at 19.
89
St. John (2018) at 218 distinguishes between the promise of investment flows and
improving investment climates.
90
The ‘primary purpose’ of the Convention, according to Broches, was to stimulate ‘a larger
flow of private international capital into those countries which wish to attract it’. Quoted
in Prosper Weil’s dissenting opinion in Tokios Tekeles (2004) at para. 3.
91
Poulsen (2015) at 96.
92
For example, Pope and Talbot (2000) at para. 115; Clayton (2015) at para. 438; Tecmed
(2003) at para. 156.
93
See the references in Poulsen (2015) at 96, fn. 127.

.  
party to these agreements’ – they ‘are an agreed set of rules that serve to
attract foreign investment’.94 Arbitrator Paulsson declares, in italics no
less, ‘that the objective of investment protection is to convince investors to
invest for the longest time possible and for the lowest possible return’.95
Yet, Paulsson admits, ‘it seems most unlikely that the signature of BITs
lead directly to an increase in foreign investment’.96 In his interviews
with investment arbitrators, Tucker reports that the mantra that treaties
are a ‘prerequisite for foreign investment’ was echoed by many interview-
ees. No details were provided, only ‘parables’ were invoked to buttress the
point.97 As in historic colonialism, the regime does not so much improve
the economic situation of capital-importing states as much as generate
conditions that are believed to improve the security for planned and
established investments abroad.
1.4 Distrust
Memmi maintained that joined to assertions of the colonizer’s ‘eminent
merits’ was disparagement of the colonized by ‘harp[ing] on the usur-
ped’s demerits’.98 ‘Having chosen to maintain the colonial system’,
Memmi declared, ‘[the colonizer] must contribute more vigor to its
defence than would have been needed to dissolve it completely.’ In which
case, he ‘will argue with vehemence to appear heroic and great’ while he
‘will persist in degrading them [the colonized] using the darkest colours
to depict them’.99 Oft-cited was the ‘trait of laziness’. ‘Nothing could
better justify the colonizer’s privileged position than his industry’,
Memmi observed. Conversely, he would complain that ‘employing the
colonized is not very profitable.100 The colonized were transformed,
instead, into thieves.101 ‘Confronted with a world ruled by the settler’,
Fanon similarly observes, ‘the native is always presumed guilty.’102
94
Dolzer (2005) at 953–54.
95
Paulsson (2010) at 347. One is left to wonder how, from an investor perspective, these
are reconcilable objectives.
96
Paulsson (2010) at 346.
97
98
Memmi (1991) at 52–53. ‘These two attempts at legitimacy’, he writes, ‘are actually
inseparable’ (at 53).
99
Memmi (1991) at 54.
100
Memmi (1991) at 79.
101
Memmi (1991) at 90.
102
Fanon (1966) at 42. Fanon attributes to the colonizer the belief that the colonized are
‘insensible to ethics’ and exhibit a ‘poverty of spirit’ and ‘constitutional depravity’ at 34.

    
The colonizer had no intention of belonging to the political commu-
nity in which he was now situated. Instead, the colonizer expected to
return to the mother country when a sufficient return on his investment
had been realized. ‘The colonialist does not plan his future in terms of the
colony, for he is there only temporarily and invests only what will bear
fruit in his time’, Memmi complains. ‘The colonialist stresses those things
which keep him separate’, he maintains, ‘rather than emphasizing that
which might contribute to the foundation of a joint community.’103
Apparently, the colonizer ‘refuses to consider himself a citizen with rights
and responsibilities’.104
In Memmi’s account, the colonizer has no intention of remaking the
colony into the image of the mother country. ‘He cannot allow such an
equation – it would destroy the principle of his privileges’, Memmi
insists. This ‘similarity is unthinkable . . . This equality is impossible.’105
They are, instead, treated as exceptions to the norm.106 Yet metropolitan
authorities sought to displace local practice and install religious, educa-
tional and economic practices informed by those in the mother country.
We might, then, agree with Mbembe that the colonizer was a ‘narcissistic
potentate’ expecting the colonized to imitate European practices but be
kept at a safe distance, despite their proximity.107 The expectation was
that a new world would be created according to European preferences
but not as its mirror image.108
The investment law regime similarly is premised on distrust of locals
in all branches and at every level of government. At its inception, investor
protections were intended to ensure that investors did not suffer any
diminution in home state protections at the hands of host states once
they were abroad.109 Investor protections are designed to punish those
states that choose to go rogue. Policy measures, no matter how beneficial
or desirable, are not to be tolerated if they depart from ‘normal’ state
behaviour. According to US Under-Secretary of the Treasury Barr in the
late 1960s, ‘new nations . . . adopt certain policies for what may be good
political reasons’. ‘However’, he continued, ‘sometimes these good polit-
ical reasons do not jibe with economic realities that are in the world
103
Memmi (1991) at 71.
104
Memmi (1991) at 68.
105
Memmi (1991) at 69.
106
This is Chatterjee’s argument in (2011) at 24–25.
107
Mbembe (2017) at 107.
108
Mbembe (2017) at 109.
109
Vandevelde (2017) at 22.

.  
today.’110 The expectation is that states will be deterred from departing
from those realities.
Tucker reports that an arbitrator admitted to him that investment
arbitration was a solution, in particular, to the problem of Africa where
governments ‘are so corrupt’.111 Another advised that the investment
regime provides guidance for ‘how to behave’. Attributing this observa-
tion to an influential arbitrator, the interviewee described ‘it as a good
government operation. Fucking little countries should be grateful! We are
to teach them how to govern themselves.’112 This is because countries
emerging out decolonization are not ‘open-minded’ and their citizens are
‘lazy’, admitted another.113 Paternalistic tropes are also in evidence in
some of the scholarship in the field. According to Wälde and Weiler,
states and citizens that resist take-up of global standards of investor
protection are ‘“minors” without full legal capacity’ – they behave as if
they are ‘juveniles’ in the international public sphere.114
As capital-exporting countries are, in theory, equally vulnerable to
investment disputes,115 this distrust is now rhetorically stretched to all
states no matter how they score on democracy or corruption indices.
This is an instance of how constraints workshopped in the Global South
get replicated in the Global North.116 Because government officials, in
both the North and South, are ‘unreliable actors’, said one interviewee to
Tucker, ‘straitjackets [are] needed to bind them across time and space’.117
The metaphor of the straitjacket captures well the intended effects of
investment treaty disciplines. A principal motivation for negotiating118
and then signing treaties is to lock in domestic reform that, otherwise,
would be resisted in local legislative branches or among local populaces.
BITs ensure that there shall not be any retreat from concessions to
foreign economic actors once granted. Egyptian negotiators, for example,
110
Quoted in St. John (2018) at 178.
111
Tucker (2018) at 64, also at 65.
112
113
114
Wälde and Weiler (2002) at 163. I have observed such paternalism at work at inter-
national meetings of the UNCTAD World Investment Forum.
115
Though they might not suffer at the hands of the system as do capital-importing ones.
See Van Harten (2012).
116
Comaroff and Comaroff (2012) at 12.
117
118
With the qualification that capital-importing states typically will have little leverage in
negotiations with powerful capital-exporting ones. See, for example, discussion in
Poulsen (2015) and the case study in Schneiderman (2009).

    
welcomed the opportunity to negotiate an investment treaty with the
United States in 2005 because it would constrain Egyptian political
capacity moving forward: it would prevent ‘anybody in the future from
going backwards’, explained the Egyptian finance minister.119 This was
also a motivation for the USA negotiating a BIT with Poland in 1990.
Polish leadership, in the period after the fall of the Soviet empire, sought
to impose austerity measures on an unwilling public. The US adminis-
tration of George H. W. Bush was happy to oblige, pushing economic
liberalization even further than Polish plans by including stringent intel-
lectual property rights.120 Investment commitments can also empower
illiberal regimes by depriving judges and lawyers from impeding their
reach, which is strengthened by creating legal enclaves in the inter-
national arena beyond the reach of domestic legal checks.121
1.5 Enclaves
The place, people and its customs ‘are always inferior – by virtue of an
inevitable and pre-established order’, Memmi observes. The colonizer
concedes ‘no merits to the colonial community, recognizing neither its
traditions, nor its laws, nor its ways, he cannot acknowledge belonging to
it himself’.122 We could say that the colonizer prefers to be wilfully
ignorant123 because he can simply rely on notions of ‘right’ by which
he can ‘rule and command’.124 Calvo-like equality of treatment is insuffi-
cient. Another regime, parallel to, even superseding, local law, needs to be
erected which excuses the colonizer from having to familiarize himself
with provincial predilections. A legal enclave is consolidated, conferring
specialized privileges on the foreigner that exempts him from local
conditions that may substantially diminish his privileges. A legal order
‘establishing his exorbitant rights and the obligations of the colonized are
conceived by him’, for his benefit, Memmi explains. The aim is to ‘upset
established rules’ and substitute them for his own.125
In Kenya, for instance, productive communal properties were declared
to be ‘waste’ and ‘unoccupied land’ and so appropriated to the advantage
119
Alden (2005).
120
See discussion in St. John (2018) at 222–26.
121
See Massoud (2014).
122
Memmi (1991) at 68.
123
Mbembe (2017) at 70.
124
Mbembe (2001) at 34.
125
Memmi (1991) at 9.

.  
of British colonialists.126 If patterns of British land tenure, premised upon
individual property rights, was now the norm, communal property
holdings were confined to unproductive ‘native reserves’.127 In
Tanzania, a similar pattern emerged, first under German colonial rule
and subsequently under British rule. In both, ‘unowned’ and ‘unoccu-
pied’ lands were vested in imperial masters who could profit from the
expropriation of what was not theirs.128 European patterns of land
distribution in the colonial era had consequences. ‘Former European
colonies display significantly higher levels of land inequality’, observes
Frankema. The ‘spread of Catholicism’ became ‘positively related to land
inequality’.129
Divestiture of aspects of self-government is the consequence. The
‘colonized does not govern . . . he cannot feel like a true citizen’, writes
Memmi.130 This leads to an atrophying in the musculature of democracy,
dampening expectations that governments can solve real economic prob-
lems.131 ‘Not being master of its destiny, not being its own legislator, not
controlling its organization, colonized society can no longer adapt its
institutions to its grievous needs’, Memmi trenchantly observes.132 If
Polanyi characterized the double movement as enabling states to take
measures for societal self-protection in the face of the deleterious effects
of markets,133 colonial societies were deprived of this same privilege.
‘Colonized society is a diseased society’, writes Memmi, ‘in which
internal dynamics no longer succeed in creating new structures’ that
respond to societal needs.134
The investment regime similarly offers a way out for investors who are
distrustful of local political and legal processes. Investor–state dispute
settlement removes disputes from municipal legal arenas to the higher
plane of international law,135 serving as a ‘substitute’ for local decision
making, says Ginsburg.136 The removal of disputes to international legal
126
Okoth-Ogendo (2002).
127
Kaneri-Mbote, Odote, Musembi and Kamande (2013) at 17.
128
Rwegasira (2012) c. 2.
129
Frankema (2006) at 12.
130
Memmi (1991) at 95–96.
131
I write about the dampening of democracy as a consequence of the investment rules
regime in Schneiderman (2018a).
132
Memmi (1991) at 98.
133
Polanyi (1944) at 141.
134
Memmi (1991) at 98–99.
135
Even if only lex specialis, says CMS (2003).
136
Ginsburg (2005) at 121.

    
process reinforces the notion that host states, particularly those in the
Global South, lack the institutional competence to resolve investment
disputes. Whether this is so is, of course, a serious empirical question.
But there is seemingly no desire to undertake such inquiries into host
state legal capacity. Instead, every legal system is considered incapable of
competently doing this work – yet another example of wilful ignorance.
The Clayton tribunal (in a dispute involving Canada’s refusal to author-
ize a rock quarry on sensitive maritime shoreline) described itself as
offering ‘independence and detachment from domestic pressures’ that
is not available to local courts.137 All national legal processes, according
to the tribunal’s self-serving account, lack independence and impartiality.
By dispensing with the requirement that claimants exhaust local rem-
edies,138 the regime evinces little interest in hearing what local courts have
to say even in circumstances, like those present in Clayton, where arbitra-
tors take it upon themselves to assess whether local legal requirements
have been satisfied.139 In some circumstances, having national courts
resolve disputes can even give rise to a breach of investment treaty
standards.140 Even where ‘[s]tate action has a reasonable basis in public
policy’, referring to judicial review condemning illegal executive action
and which precipitated an investment dispute in Arif, ‘the fair and equit-
able treatment standard still requires that the State respect the legitimate
expectations’ of investors. In such circumstances, ‘the State should seek to
ameliorate the effects of the change of policy on the investor’.141 Even
authoritarian states will have an interest in disabling national judicial and
legal actors from disturbing the confidence of foreign investors.142 In this
hall of mirrors, there seems to be little room for a national judicial role.
Rather than seeking to check purported judicial bias (generating solu-
tions associated with ‘voice’), the suggested response is to exit to a legal
regime more favourably inclined towards investors.143 In which case,
137
Clayton (2015) at para. 439.
138
There is ‘no general requirement to exhaust local remedies for a treaty claim to exist’
according to the tribunal in Arif (2013) at para. 334.
139
For a critique of Clayton (2015), see Schneiderman (2017a).
140
In circumstances, for instance, where the executive branch encourages an investor to
make an investment, the judicial branch condemns the executive action as illegal, and
the executive then respects the judicial ruling, there can be a denial of FET. See Arif
(2013) discussed in Sattorova (2018) at 146–47.
141
Arif (2013) at para. 537.
142
Massoud (2014) at 19.
143
Contributing to the phenomenon of ‘expansionary trends’ in investment treaty arbitra-
tion. See Sornarajah (2008) and Van Harten (2013) at 159.

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Full Ebook of Investment Laws Alibis Colonialism Imperialism Debt and Development David Schneiderman Online PDF All Chapter

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Investment Law's Alibis: Colonialism,

Imperialism, Debt and Development

Cambridge IGCSE and O Level History Workbook 2C - Depth

Royals on tour Politics pageantry and colonialism

Primary Mathematics 3A Hoerst

Integrating Sustainable Development in International

Principles of International Investment Law Ursula

Civil Society in Investment Treaty Arbitration Nijhoff

Investment of Life Insurance Funds David Mccahan

Investment Science 2nd Edition David G. Luenberger

  is Professor of Law and Political Science at the

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Cambridge University Press is part of the University of Cambridge.

This publication is in copyright. Subject to statutory exception

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This book is the fruit of an intellectual sojourn to Sweden. I owe particu-

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Published online by Cambridge University Press

Being past, being no more, is passionately at work in things.1

This book is prompted by a modest intuition. Thumbing through a well-

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https://doi.org/10.1017/9781009153515.001 Published online by Cambridge University Press

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I.1 Foucauldian Frame

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I.2 Outline of Book

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Colonialism of Investment Law

Does international investment law perpetuate relations of domination

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1.1 Why Coloniality?

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https://doi.org/10.1017/9781009153515.002 Published online by Cambridge University Press

https://doi.org/10.1017/9781009153515.002 Published online by Cambridge University Press

https://doi.org/10.1017/9781009153515.002 Published online by Cambridge University Press