Foreign investors have filed more than ten investment disputes against the Colombian State since 2016, claiming damages in the amount of about US $5,000 million. Fearing the threat of multi-million dollar awards, the rise in investor claims has resulted in “regulatory chill,” causing Colombian authorities to refrain from acting in accordance with their constitutional obligations in addition to other international obligations. The paper aims (1) to problematize from a (post) colonial perspective the tension between the constitutional law and the investment law by examining the Colombian case and, specifically, the investor disputes launched in reaction to natural resource protections; and (2) to identify the colonial legacies at work that are embedded in the investment law and that continue to shape global North-South relations.
The hegemonic concept of foreign investment embedded in almost 3.300 international investment agreements (IIA) implies that capital-exporting States have imposed its own perspective of development, which means that foreign capital is detached from welfare of the host states. The arbitral decisions taken within the international investment law and the financial outcomes derived from those decisions, show that such system is mainly addressed to provide a extremely favourable protection for private property rights of foreign investors, especially, to those linked to multinational companies and wealthy individuals from developed nations. On this regard, in order to rethink new methods and understandings of the international investment law, the paper aims to discuss the empirical outcomes that the hegemonic concept of foreign investment included at the IIA have been unfolded at the Global South, and how it has impacted on the development at the domestic level.
The negotiation, signing and ratification of BITs require taking seriously the constitutional obligations, in order to preserve the coherence of the legal order and to avoid a radical mutation of the Constitution. On this regard, the role of the Constitutional Court as a guardian of the Constitution is crucial, especially because of its duty of reviewing the clauses of the BITs that could cause significant consequences at the domestic level. Focusing on the BITs between Colombia and France and Colombia and Israel, this paper aims to analyse the impact on the equality principle because of the discrimination of the domestic investors and the extremely favourable treatment to foreign investors. This problem also suggests reflecting on the asymmetrical relationship between developed and developing countries according to the new legal mechanisms embedded at the international investment law and at the constitutional law.
Using as an analytical framework the old polemic between Carlos Calvo and Juan Bautista Alberdi in the 1860s, this presentation will explore the current role of Latin-American lawyers in the construction of the investment protection regime. In particular, the presentation will explore the colonial traits in the work of these lawyers, as it can be found in four intertwined areas of their practice: (1) Decision-making as arbitrators, (2) Drafting of BITs and other investment-protection instruments as policy advisors, (3) Writing of articles and commentaries as scholars, and (4) Advocating for investors or States in investor-State arbitrations as lawyers. The presentation will explore as well the possibility of alternative directions for Latin-American lawyers willing to engage in these areas of practice.
Law’s methods continue to be preoccupied with protecting property and contract at both national and international levels via constitutional forms. To this end, capital-exporting states have been cementing their influence via new legal regimes, like international investment law. What is left unexplored is the extent to which new legal regimes have continuity with those in the past. To this end, the paper conjoins the notion of empire with the spatial relationship of core and periphery. Investment law constrains political capacity in the periphery as did imperial constitutional rule via informal means. Contemporary rule, however, is conducted in a more formal manner with the effect of making metropolitan interests appear to be separate from legal outcomes. By interrogating investment law through the lens of empire, the paper aims reconnecting law to politics in an age when constitutional formalities continue to proliferate.