Volume 51
Issue 4
Spring '21

“There is Nothing in a Caterpillar That Tells You it is Going to be a Butterfly”: Proposal for a Reconceptualization of International Investment Protection Law

Written By: Csongor István Nagy


This Article argues that the initial rationale of bilateral investment treaties (BITs) was not to grant some privileged protection to foreign investors but to guarantee a reasonable level of protection that pertains to rule-of-law states (minimum standard of economic constitutionalism). The practice of investor-state dispute settlement (ISDS) detached from this original rationale and took on a life of its own. This deviation may be explained mainly by the fact that ISDS “privatized” disputes of public law. The Article proposes to treat investment protection as an example of a non-trade value protected in international trade: the same as intellectual property, environmental protection, and labor standards. While such non-trade values have clear links to trade and trade interests, they also have a normative value, which shapes their doctrinal conceptualization.

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