(image source: OUP)
Abstract:
The case for the desirability of the modern system of investment treaty arbitration rests on certain stylized historical claims. Those claims serve to demonstrate that the pre-modern system of dealing with investor – state disputes was inferior compared to current arrangements, which allow foreign investors to initiate highly legalized (or “depoliticized”) arbitration against host state governments for alleged violations of investment treaties. The implication of the historical comparison is that we should accept, and perhaps even expand, investment treaty arbitration to avoid a return to a more dangerous practice. This article challenges the historicity of this standard story through an in-depth examination of an important but understudied episode of expropriation from the 1970s, Mauritania’s seizure of the MIFERMA iron ore operations. As I show below, politicized dispute settlement need not entail, nor even risk, resort to force. It can even be successful, especially where home and host state governments and the investor perceive mutual gains from continued cooperation. More generally, the article suggests the utility of micro-historical analysis of investor – state disputes as a methodology for gaining a more realistic understanding of how legal and diplomatic dispute settlement methods can interact to support negotiated outcomes.Read more here.
