The creation of elusive investor responsibility

Abstract

The issue of investor responsibility reveals a stubborn bias within international investment law. That law addresses mistreatment by host states of foreign investors but consistently fails to address investor misconduct in host states. The traditional emphasis on state responsibility in this context has allowed abusive, pollutive, and corrupt investor behavior to thrive. International investment law is the current object of scrutiny, criticism, and reform in large part because many see it as overprotecting investors.1 However, scholars and reformers have focused on state responsibility, tinkering with the legal and institutional conditions that determine the international wrongfulness of state conduct. Unless and until investor responsibility is integrated into international investment law reform, the overprotection of investors owing to an accountability gap will continue to undermine its legitimacy. This essay posits that the first step to integration is understanding why investor responsibility scrabbles to find purchase in international investment law. I argue that elusive investor responsibility was created by omission, with injurious consequences that highlight the need to alter, rather than accept, the status quo.