Bridging the Gap: International Investment Law and Investor State Dispute Settlement Mechanism as a Catalyst for Economic Downturn and Human Rights Violations in Developing Countries

Abstract

At the very core of international investment law (IIL) lies the protection of foreign investments which are often exhibited by clauses found in Bilateral Investment Treaties (BIT’s) or investment chapters of Free Trade Agreements (FTA’s). These protections contain standard clauses that usually includes investor-state dispute settlement (ISDS) as a mode of resolving disputes. For developing countries, the presence of foreign direct investment (FDI) within the territory of their host state signals development. However, the existence of certain standards for protecting FDI and foreign investors alike, as found in BIT’s or investment chapters of FTA’s, have meted out deleterious effects on the regulatory powers and developmental status of developing countries. As a result, this thesis aims at examining the resulting consequences of IIL on developing countries. In so doing, I adopt the use of TWAIL constructivism as a main method to reveal how the power imbalance that plagued the history of IIL contributed to its present-day lopsided nature in terms of who the dominant actors are and how the latter affects the process of norm formation under international law. Using the example of the recent trends in Africa, I note that developing states need to ensure that the rulemaking trends taking place isn’t merely reactionary to the lopsided nature of IIL within their respective jurisdiction. To this end, to ensure a body of IIL that will work both at the national and international level, the following questions, which will eventually lead to a multistakeholder approach must be considered: who are the actors? Does an actor have the capacity to speak and be heard? What is the actor saying and how is the actor saying what it purports to be said?