The Anti-Reformist Stance in Investment Law

Abstract

This article articulates an 'anti-reformist' stance toward the reform of international investment law and dispute settlement. The mainstream debates over the future of investment law are generally 'reformist,' in the sense that they seek to maintain the system of special legal rights afforded to a discrete class of persons defined as 'investors'. This system of special rights amplifies investors' power vis-à-vis other constituencies and is premised on flimsy assumptions about the investor's vulnerability that are not borne out either in theory or in practice. Drawing on recent work in other fields, this article sketches an anti-reformist approach that asserts these fundamental challenges, even as it remains engaged in contemporary reform debates. It also discusses the near-term implications of this approach for procedural and substantive reform of investment treaties, as well as the long-range goals of an anti-reformist stance.