ICSID, Third World peoples and the re-construction of the investment dispute settlement system
University of British Columbia
Doctor of Philosophy - PhD
This thesis addresses the following central question: How, if at all, does the engagement of Third World peoples with investment activities and law, and the International Centre for Settlement of Investment Disputes (ICSID) tribunals’ responses to such engagement, re-construct the international investment system? The thesis seeks to understand how changes occur in the investment dispute settlement system by focusing on the mutually reinforcing interactions between Third World peoples, investment law and activities, and ICSID tribunals. Without discounting states and foreign investors’ place, it demonstrates that Third World peoples’ resistance has the potential to contribute to the re-construction of the investment dispute settlement system when ICSID tribunals account for these interactions. This thesis’ research methodology is principally analytical. It involves inter alia a detailed study of three ICSID tribunals’ decisions that address Third World peoples’ place in the international investment system. The theoretical perspective is rigorously interdisciplinary. It draws from Third World Approaches to International Law (TWAIL), Lon L. Fuller’s interactional theory of law, and constructivist international relations theory in formulating a perspective that I refer to as “TWAIL Constructivism”. TWAIL Constructivism’s four-fold tenets that inform this research work emphasize actors’ identity, power relations in the international system, ideational resources that are available to actors, and methods of engagement. While the interactions between Third World peoples and the ICSID system have the potential to contribute to a robust assessment of investment disputes in a manner that actively engages the perspectives of these peoples, at the present time, such contributions are modest. Nevertheless, these modest contributions shape the norms that emerge in the international investment system including norms of participation, norms of interaction and norms of regulation. In order to further the contributions of Third World peoples’ interactions to the development of “intersubjective beliefs” or legal norm-building in this area of the law, there is a need first, to hone a peoples’ initiative, which encourages peoples’ participation in the dispute settlement system. Second, a tribunals’ initiative that recognizes the agency of Third World peoples and takes their perspectives seriously in reaching robust decisions is necessary.
Attribution-NonCommercial-NoDerivatives 4.0 International
Law, Faculty of