Fine Balance: Empire, Neoliberalism, and the Fair and Equitable Treatment Standard in International Investment Law

Abstract

Abstract In this article, I show how the framework of empire remains central for analyzing contemporary international investment law. Moving beyond criticisms about the domination of global South polities by the West, or by a transnational capitalist class, I suggest instead that ‘empire’ can help us analyze the protocols of reasoning in investor-State arbitrations. Through a close reading of scholarship on the fair and equitable (FET) clause, and a recent arbitral award arising out an FET claim, I show that the field is characterized by an imperial mode of legal reasoning. This mode was reason was produced by a foundational distrust of postcolonial developmental States. It involves judging concrete State action against a fictional universal baseline that represents the ordoliberal utopia of an austere rule of law bound State. Crucially, in investor-State dispute settlement, this form of reasoning remains discernible even when foreign investors do not succeed.