The Past, Present, and Future of Domestic Investment Laws and International Economic Law

Abstract

This article considers the past, present, and future of domestic investment laws. Its focus is on the 'facilitative' investment law, which aims to encourage foreign investment by granting substantive protections to foreign investors and consent to international arbitration over disputes with foreign investors. The article first contends that states had independent reasons to enact such facilitative investment laws alongside investment treaties, even though investment treaties perform very similar functions. Secondly, the article argues that investment laws can be characterized either as unilaterally assumed international obligations of states or simply as domestic laws of states, with differing consequences under each characterization. Thirdly, the article proposes four possible futures for facilitative investment laws: contamination, continuation, compromise, and contestation.