S. International Investment Law

This class will meet on the following dates: Jan. 17, 19, 24, 26, 31 - Feb. 2, 7, 9 - April 11, 13, 18, 20, 25.

International investment law consists of those international legal principles that define the obligations of states toward the investments of aliens within their territory. As recently as 35 years ago, this body of law was defined by a relatively few cases and pertinent treaties; today there literally are thousands of investment treaties and hundreds of cases interpreting and applying those treaties. Many of these cases raise issues that were unknown, or at least not discussed, 35 years ago.

This seminar will consider the development of this body of law from its earliest days to the present. It will begin with a review of the legal principles espoused by the United States and other Western countries in the late 19th and early 20th centuries, when there were few independent countries interested in challenging these views. The seminar then will consider the development of dissent from this Western consensus, in the Communist world, in Latin America, and in the newly-independent states of Asia and Africa that emerged following the Second World War. Our consideration of this long period of discord will be followed by discussion of the so-called "Washington consensus" that developed in the 80s and 90s, some parts of which are reflected in the thousands of bilateral investment treaties that have been concluded, largely in the last 30 years. We then will focus on those investment treaties, and the many arbitral awards that have interpreted them, to identify (1) key principles of investment law on which a broad consensus has emerged and (2) difficulties that arise in applying those principles to particular situations. Finally, the seminar will consider the relationship between international investment law and efforts by states -- jointly or separately -- to promote environmental protection, labor rights, and investments that serve the long-term interests of the population of the host state. We will discuss whether these goals can be pursued effectively under the principles on which a consensus now exists, whether these principles need to change, or whether some additional principles need to evolve.
This is a seminar. There will be a lot of discussion and little lecturing.

Method of evaluation: 8 short reaction papers and class participation.