Defending the "Constitutionalising" of International Investment Law

Abstract

This paper examines and defends the “constitutionalising” of international investment law. It views the development of international investment law through a constitutional lens, showing that international investment law has developed in such a way that, by holding governments to certain standards of behaviour in regards to their market conduct and giving foreign investors enforceable rights should these standards by violated, it has created a system where investor rights are shielded from the orthodox workings of democracy akin to how a constitution works domestically. This paper defends such a process in the face of concerns about its suitability. The “constitutionalising” of international investment law, if done correctly, can secure the mutual benefits of international investment and avoid and mitigate any potential harmful effects.