07–03–2023
The following is an excerpt from the introduction of my MA thesis on decolonization and Western companies' lobbying efforts to better protect their foreign investments in a changing legal environment.
This is a story about private enterprise and its quest to better protect its investments in times of mounting legal uncertainty from the late 1950s through the 1960s. Couched in ostensibly universal language of development, technical assistance, aid, and mutual benefits were the financial interests of multinational companies, ‘threatened’ by the newly independent states’ ascendance to sovereignty. An archival anecdote from the Swiss multinational cotton trading house Gebrüder Volkart manifests the vested interests of private capital.[1] In 1960, the Swiss government sought to determine the amount of private investment in ‘developing’ countries, since it understood them as part of the wider Swiss efforts in development cooperation. In its reply to the governmental questionnaire, Gebrüder Volkart voiced concerns regarding the inferences that could be drawn from such a survey:. If investments had increased in a country during the survey period, the government would naively assume that Switzerland consequently had helped them. However, one also had to consider how much the Swiss company had “extracted” from the same country in the form of interest, profits, and wages paid to its Swiss employees. Hence, Gebrüder Volkart cautioned against automatically labelling all investments, credits, and loans as aid, disregarding the conditions in which such transactions took place. The company concluded its intervention with remarkably blunt words: “As far as we are concerned, however, we can safely say that over the last 100 years we have taken more from underdeveloped countries than we have given them, and we believe that in making this observation we find ourselves in good company.”[2]
In the words of Jürgen Osterhammel and Jan Jansen, decolonisation “sent shock waves that went far beyond the dissolution of formal colonial rule.”[3] More than the acquisition of external sovereignty, decolonisation encompassed broader processes of dis- and re-entanglement. Legal frameworks changed drastically, threatening the profitable colonial business models of companies operating in the imperial context. Some tried to adapt to the new environment and devised strategies that made them less reliant on fixed capital investments in regions deemed ‘unstable.’[4] Other strategies included complete retreat and disinvestment, relocation, corruption of local bureaucrats, or maintaining legitimacy through public relations campaigns.[5] Some companies, however, had fewer options. With many commodity reserves located in countries of the Third World, the extractive industry faced a huge challenge.[6] In their quest for permanent sovereignty over natural resources, many newly independent states questioned, demanded changes to, or simply nullified the legal arrangements, contracts, and concessions established with petroleum and mining companies in an imperial framework.[7] The dispute over the nationalisation of the Iranian oil in 1953 and the Egyptian seizure of the Suez canal left a lasting impression on Western companies.[8] How could they better safeguard their investments? The times that one could send a canon boat to lend force to one’s demands were over, as the German banker Hermann J. Abs uttered regretfully.[9] Investors turned to international law. A group of what Nicolàs Perrone terms as “norm entrepreneurs” sought to strengthen the protection of private foreign investments at the international and national level “by making the rules of the world economy.”[10] As such, the project was about both securing the endurance and advancing the ideas and norms of a liberal Western world order. In May 1958, a colloque of mostly French and some international legal specialists under the auspices of the Association de Droit Minier et Pétrolier convened in Aix-en-Provence to discuss the “safeguarding of oil and mining investments throughout the world within the framework of International Law.”[11] Realising that there existed several competing and complementary proposals, the gathered jurists expressed the need for an international coordinating body. This entity would study the different ideas and promote the most feasible ones amongst governments and international organisations.[12] Consequently, in late 1958, some of the jurists from Aix together with prominent Western business executives met in Geneva to establish the International Association for the Promotion and Protection of Private Foreign Investments (APPI; in French: Association internationale pour la promotion et la protection des investissements privés en territoires étrangers).[13]
While scholars researching international investment law and policy making generally acknowledge the APPI as an important player, they all treat it in passing. We know little about the APPI’s institutional history, its ties to international bodies and national governments and even less about its motifs, its reasoning, its intellectual legacy. My thesis tells the story of the APPI. It covers the period from its inception in 1958 up until the early 1970s, when it assumed more of a club character. Based on thus far barely accessed sources at the archives of TotalEnergies in Paris, I trace the organisation’s French roots in the Association de Droit Minier et Pétrolier. The French connection unveils the centrality of petroleum interests to the push for better investment protection, shattering the APPI’s carefully constructed and reproduced image of a united investors’ front. These sources also underscore the strong preference of the French members’ ‘legal imaginary’ for investor-state arbitration, which required the “depoliticisation” and “privatisation” of international law.[14] Lobbying for an international arbitral body to settle investment disputes would become one of the APPI’s main pillars of activity. My thesis describes the organisations ambitious world-making program, analysing internal documents and key members’ writings. It further follows their footsteps to recover the organisation’s efforts in conveying the importance of investment protection for economic development to governments and international organisations. Readers hopefully will better understand the mechanics of an actor that in other accounts may appear as an undifferentiated monolithic block of capital’s interests.[15]
The business executives assembled in the APPI were responsible for much of its work. Drawing from the resources within their own companies, they employed for the cause their formidable networks. These distinguished personalities enjoyed privileged access to the inner circles of administrations and international organisations such as the World Bank. Thus, sources—i.e. correspondence or meeting minutes pertaining to the APPI—are scattered across private, company and state archives. Some of these I could access, including holdings at the Swiss Federal Archives and the Swiss economic archives (Schweizerisches Wirtschaftsarchiv SWA, Basel). Other enquiries yielded little results (BNP Paribas archives, World Bank archives), nothing (several Geneva-based archives) or were left unanswered (International Chamber of Commerce). Other files such as the Arthur H. Dean papers at Cornell University Library (a founding member of APPI) or the stenographic report of the colloque in Aix-en-Provençe at the Peace Palace Library in Den Haag are located too far away and were unavailable digitally. Concluding from its meticulous taxonomy, the APPI secretariat must have kept also kept an archive itself containing at least the documents it circulated amongst its executive members, subscribing companies, as well as correspondence of official character. For the first few years of its existence, Parisian lawyer Pierre Piffault assumed the responsibilities of Secretary-General. Since he held the same post for the Association de Droit Minier et Pétrolier, many documents have survived in the archives of TotalEnergies.[16] For most of the 1960s, likely the APPI’s most active period, Geneva-based lawyer Michael Brandon acted as Secretary-General. However, Brandon’s family after his death disposed of all APPI-related files.[17] Luckily, the personal archives of Hermann J. Abs at Deutsche Bank archives hold many important documents from this period, albeit clearly selective according to Abs’ personal preferences.[18] Much must have been lost already early on.[19] Brandon’s successor Sandberg in 1974 had to work with what was apparently a very incomplete documentation.[20] With the election of Rainer E. Gut as APPI President in 1981, these files were transferred to the Credit Suisse that categorically denies access to its archives to outside researchers.[21]
Of the documents I could consult, many have a quasi-official character, including bulletins covering recent events that the APPI circulated amongst member companies, letter exchanges with government officials and press statements. Even for internal documents, the Secretary-Generals were instructed to self-censor annual reports, meeting minutes and circulars among members. Members wished the reports and minutes to only contain short summaries of discussions and decisions, without mention of individual statements, especially if voiced confidentially.[22] Luckily, thanks to the personal archives of Pierre Piffault and Hermann J.Abs, there are some internal letters and notes that help contextualise the other sources, and enable us to discern more personal (and confidential) views. However, considering the character of the organisation, its members discussed issues that they deemed “too hot” to be written down in person or over the phone.[23] Therefore, the following narrative can only be an approximation.
Drawing from postcolonial theory, international law scholar Sundhya Pahuja reads the emergence of post-World War II international law and its institutions as a site of struggle for emancipatory and regulatory forces.[24] International law possesses a “dual quality”—an imperial and a counter-imperial dimension—the former serving as an instrument of European imperial expansion, the latter a possibility for countries in the Global South to challenge global exclusions and inequalities on the grounds of international law’s universal claim.[25] Pahuja wants to show that law invariably will have a universal orientation for it to be law, but that this claim to universality is unstable since “it is always implanted with the seeds of its own excess. This fecundity makes it dangerous to power and, in the right conditions, politically productive.”[26] Pahuja following Dipesh Chakrabarty then argues that the Global North in response to the claims advanced by developing countries insisted on its own ‘provincial’ and particular understanding of international law’s universality deeply rooted in the North, effectively rendering any other reading as peripheral or inferior and thus invalid.[27] This view is shared by Anghie, who writes that “the formal acquisition of sovereignty and equality did not translate into the real power that the Third World states had hoped for.”[28] The concepts of development and economic growth allowed for keeping in place as universal the values advanced by the West, since they appeared to be ‘truths’ that were outside and superior to the framework of international law, removed from political contestation.[29] Hence, in each exemplary instance that Pahuja examines, claims by countries from the Global South ultimately fail, allowing for the “production of an ever-expanding sphere of intervention in the Third World.” [30] In reference to William Easterly, who lists many of these failed interventions in The White Man’s Burden: Why the West’s Efforts to Aid the Rest Have Done So Much Ill and So Little Good, Pahuja contends that rather than actually reproducing “certain idealised social, political and economic models,” the aim was to exert control “through the implementation of ongoing ‘reforms’, which are justified by reference to the ‘ideal’ institutions of the North.”[31] Ultimately then, imperialism had persisted by disguising itself behind ostensibly universal and neutral fundamental concepts of contemporary international law and international organizations, such as development, its ‘twin’ economic growth or the rule of law. Consequently, the newly independent states entered an international system drawn up by the United States that dramatically limited the possible expressions of self-determination.[32]
Pahuja sees decolonization as an instance in which international law reveals its dual character as both emancipatory and regulatory: the universal principles of self-determination and national sovereignty allowed, perhaps even demanded challenges to the colonial powers and claims to independence. Nationalism however “simultaneously required an acceptance by the colonised of the coloniser’s epistemological frame,” due to the particularity of the nation and the nation-state as laid down in Western principles to organize a society.[33] As Partha Chatterjee observes, inherent to nationalism is the contradiction that it both “denied the alleged inferiority of the colonized people; it also asserted that a backward nation could ‘modernize’ itself while retaining its cultural identity.”[34] Still, nation-statehood once attained could have led to potentially disruptive requests for substantive equality based on the universal claim to sovereignty and the principle that states are equal. For Adom Getachew, the right to self-determination could be read as setting “juridical limits on domination in the international sphere” and aiming for a “domination-free” international society.[35] This is where according to Pahuja the discourse of development came into play, which promoted a stagiest worldview in which ‘backward’ or underdeveloped countries could modernize themselves, thus catching up within a scalar logic that put the ‘developed’ nations at the top of the hierarchy.[36] Anghie writes that consequently, the “difference between the colonizers and the formerly colonized was no longer located in juridical distinctions between the civilized and the uncivilized, but in economic distinctions between the developed and the developing.”[37] Linked to this was the imagination that everyone was part of a “single, universal story of progress.” Accepting this model of progress, with the nation-state as the attainable “end,” it was necessary to accept for liberation movements that one was backward in comparison with the advanced nations and this backwardness could be attributed to the colonist.[38] The idea of development was especially attractive to newly independent countries that had to establish their sovereignty also domestically, facing internal challenges such as ethnic conflicts, labor and separatist movements. Partha Chatterjee claims that the post-colonial state would find its “distinctive content” in the “universal function of ‘development’ of national society as a whole.”[39] The side effects of this argumentation were “the endorsement of a juridical separation between the economic and political, the location of the engine of progress in the economy, and, finally, the institutionalisation of a legitimate concern for that engine in the World Bank […].”[40] According to Pahuja both economics and development’s main assumptions are based upon faith and not science, positions outside the sphere of politics or human decision. The ubiquity of development then becomes unchallengeable: “So, although people may dispute what constitutes development or indeed how it should be brought about, the notion of development per se as the right way to address global inequalities is not open to question.” Hence, the discourse of development covertly constrains the possibilities in international law.[41] In the post-World War II era, Pahuja identifies the claims to Permanent Sovereignty over Natural Resources (PSNR) as an instance which reveals the dual quality of international law, in the sense that Third World countries’ aspiration were “transformed by, and subsumed within, a nascent regulatory framework dealing with foreign investment.”[42] She thus invites us to re-examine the conventional narrative of failed claims to PSNR and subsequently the calls for a New International Economic Order (NIEO) that for a moment (oil crisis) in time seemed to gain momentum and then failed—so goes the conventional argument according to Pahuja—due to the falling oil and commodity prices and the difficulties for the Global South to organize. According to Pahuja, Third World countries sought to base their claim to the natural resources in their soil on the principle of sovereign equality amongst nation states, a direct descent of the “myth of Westphalia” a new world order in which international law operates “between rather than above states.”[43] However, the fact that these countries also accepted the doctrine of economic growth (one of the pillars of development) led to the installment of a “new value above international law, and one to which law became answerable.”[44] As a consequence, they had to accept the accompanying concepts of property rights and the commodification of resources. It thus could be said that “to recognise dominium – in contradistinction to imperium or jurisdiction – is already to internalize a notion of the propertisation of land and resources. This is itself a sphere which, in the abstract, the sovereign should be able to reject or embrace as a tenet of sovereignty.”[45]
For Anghie, the doctrine of state responsibility with regards to private foreign investment was a particularly fertile ground for clashes over the rules of international law between Third World countries and the West. For the latter, the law foresaw that host countries would respect a set of universal international minimum standards for the protection of foreign investment, even if these standards went further than what the domestic law stipulated.[46] As Sornarajah and others have shown, the development of international standards on foreign investment protection was intricately linked to the expansion of European and North American commerce in the 18th and particularly the 19th century.[47] While most investments at the time took place in a colonial setting where the imperial legal system gave enough protection, in states outside the imperial framework, the imperial powers—amongst other strategies—established through diplomacy and force enclaves in which the law of the trader’s home country applied (principle of ‘extraterritoriality’).[48] As such, Sornarajah holds that well into the post-colonial period, power often served as the “final arbiter” to settle foreign investment disputes.[49] To justify such action, particularly the use of force, however, capital-exporting countries had to devise a legal justification. The literature emphasizes the importance of Latin America in this regard, since after their independence in the early 19th century, they were subject to increasing investment and influence from the US that “insisted that its Latin American neighbours should treat foreign investors in accordance with international standards.”[50] Standards that suited the commercial and political interests of the capital-exporting countries, providing them with a “mechanism through which to enforce that viewpoint.”[51] Miles therefore holds that for our understanding of international investment law we have recognize that the context of its emergence was one “of exploitation and imperialism” in which the rules were formulated in order to “advance the interests of Western capital-exporting states in engaging with the non-European world, and, as such, they protected only the investor.”[52]
According to Nicolàs Perrone, the developments in international investment law in the late 1950s and early 1960s have decisively shaped today’s legal framework. A caste of business leaders, bankers, and lawyers was convinced that foreign private investment should promote development since this was too big a role for international aid that had helped reconstruct particularly Europe after WWII. However, for this to happen, investors relied on international rules that would safeguard their capital, which was threatened by an increasing number of cases of nationalisation.[53] In the West, this resulted in an attempt at treaty regime creation to the challenges presented by the claims of the Third World, resulting in a flurry of drafts for a multilateral framework. These initiatives[54] included the 1948 Havana Charter as part of the unsuccessful creation of the International Trade Organization (ITO),[55] the 1949 International Code of Fair Treatment for Foreign Investment as proposed by the International Chamber of Commerce (ICC),[56] the International Law Association’s (ILA) Draft Statute of the Arbitral Tribunal for Foreign Investment and the Foreign Investment Court,[57] the 1959 investor-led Abs-Shawcross Draft Convention on Investments Abroad,[58] and the 1967 Draft Convention on the Protection of Foreign Property as proposed by the Organization for Economic Cooperation and Development (OECD).[59] Perrone coins the term “norm entrepreneurs” for the business leaders he studies and whose interests lie in “strengthening foreign investor rights and minimizing state economic interference by making the rules of the world economy.”[60] As such, the project was also about both securing the endurance and advancing the ideas and norms of a liberal Western world order. Even though they failed at establishing a multilateral convention, they created a “particular meta-language of international investment law that is still influential today,” thus crafting a “canon of the imagination.”[61] At the heart of Perrone’s conceptual argument lies the idea of the ‘legal imagination,’ by which he understands the norm entrepreneurs’ “specific way of thinking about foreign investor rights and investment relation,” borrowing from Charles Taylor’s broader concept of social imaginaries with which he describes how people think about their surroundings influences the way in which society is organised.[62] For Perrone then, the legal imaginary “sits in the mess of things between the idea of a grand narrative (such as capitalism) and the dry way in which lawyers talk about the law in everyday practice,” keeping in mind the world-making project they had, namely the conviction that “empowering multinational corporations and promoting foreign investment [was] the best thing that could ever happen to an economy.”[63]
According to Perrone, the APPI played an important role as some sort of conduit for the exchange of ideas and the coordination of efforts in this world-making project, since its Directing Committee “gathered the executives of the most prominent (largely Western) international banks, corporations, and law firms of the time.”[64] This view is shared by Taylor St John who writes that APPI members were “well-informed” and that the network served as “a conduit of information between governments;” she however sees its activities limited to mainly Germany and Switzerland, a view that conflicts with the sources as well as the fact that most of the Directing Committee’s members spoke languages other than German.[65] Contemporary scholars identified the APPI as an important player, too.[66] However, these scholars all treat the APPI in passing and instead focus on some of the main protagonists, particularly the German banker Hermann J. Abs and the British Lord Hartley Shawcross. Contradicting St John and in line with Charles Lipson, Perrone claims that the literature had overlooked the “substantial participation” of business leaders like Abs and Shawcross to the evolution and development of international investment law. Abs and Shawcross—rather than being on a personal quest (St John’s reading)—should be understood as the “most visible faces of a broad coalition in favour of international investment protection.”[67]
I place my thesis firmly in the framework provided by the works summarised above. The APPI was a vehicle for businesspeople to react to the challenge to the international system and economic world order posed by the newly independent states. The case of the APPI is an example of what Pahuja calls a “battle of institutions”: in the struggle over permanent sovereignty over natural resources versus better investment protection, the wrestling players picked different fora for their claim-making projects.[68] The APPI in various instances over time contemplated strategies of how and where to promote its world-making ideas—it did forum shopping on the international stage. This was especially the case with the novel idea of investor-state arbitration.
Here, the evidence put forward contradicts the foremost scholar on the emergence of an international investment arbitration scheme. Taylor St John claims that there was “strikingly little evidence” for lobbying and that investors were “largely uninformed” about the different projects.[69] For her, the World Bank was the primary driver behind investor-state arbitration. As I will show, at least some of the people co-establishing the APPI did so with the idea in mind to promote investor-state arbitration at the international level and they were content with the World Bank picking up where they (as private investors) had to stop.[70]
I also substantiate Perrone’s assertion that a broad coalition of private enterprise decisively shaped the emerging international investment protection regime in the 1950s and 1960s. Chapters two and three exemplify how high-level businessmen assembled in the APPI used their personal networks to promote their “legal imagination” with national governments and international bodies. Extending Perrone’s thesis, I also demonstrate that these norm entrepreneurs continued their activities throughout the 1960s and into the early 1970s as an investors’ “watchdog” or “fire brigade.”[71] APPI members sought to bring in line whom they perceived as allies, such as the World Bank or the governments of capital-exporting countries. Similarly, they attempted to discipline governments of ‘developing’ countries that took measures the APPI deemed detrimental to a good investment climate. Instruments to do so included missions or conversations with heads of states or official letters paired sometimes with publicity in the international media. Lastly, my introductory chapter reveals the important role of the petroleum and mining industry in the setup of the APPI. In a sense, these companies sought to disguise their interests behind the ostensibly broader business coalition assembled in the association, something that scholars so far were unable to unveil.
Chapter one sets the stage. In broad strokes it paints a picture of the wider historical moment. It populates it with the main actors that set up the APPI, including the French Association de Droit Minier et Pétrolier’s role, hitherto unaccounted for. I then discern the involved parties’ at times diverging interests and preferences in terms of the international investment protection scheme they envisioned. These competing visions also entailed clashes regarding the association’s role and setup. I cover the most important of these together with an explanatory part on the functioning of the APPI. Chapter two follows the traces of the APPI and its members onto the international scene. It looks at how they disseminated and lobbied their ideas at various international bodies, including the United Nations, the OECD, and the World Bank. The last chapter focuses on the APPI’s relationship with national governments. I look at instances where it sought to bring in line administrations that it perceived as allies. For this, I also the change perspective, and seek to understand how governments perceived the APPI and its at times demanding positions. I do this with the example of Switzerland, based on sources from the Swiss Federal Archives. Lastly, chapter three narrates the story of a ‘disciplining’ mission of APPI members to the presidents of Argentina and Peru. These countries had planned to expropriate foreign oil companies, much to the dismay of the APPI. In the conclusions, I seek to place this sometimes rather dry and administrative story in a wider historical context. I reflect on some unanswered questions, identify shortcomings of the present work and point to future research avenues.
[1] Christof Dejung writes a history of world trade based on the Volkart company archives, See Christof Dejung Commodity Trading, Globalization and the Colonial World: Spinning the Web of the Global Market (New York: Routledge, 2018).
[2] Erhebung über Hilfeleistung an Entwicklungsländer, letter from the Syndicat des Maisons Suisses du Commerce Mondial et du Commerce de Transit to the Federal Political Department, 13.10.1960, BAR C.41.124.2. Unsurprisingly, the company urged the authorities to treat its remarks strictly confidentially. The original is in German. All translations in this work from German and Spanish are mine, and I am solely responsible for any error. I refrained from translating French sources.
[3] Jan C. Jansen, and Jürgen Osterhammel, Decolonization: A Short History (Princeton: Princeton University Press, 2017), 11.
[4] Mehos and Moon suggest that the Handelsvereeniging “Amsterdam” as a response to the challenges of decolonisation changed its business model from operating immobile and capital-intensive plantations to the circulation of agricultural experts, selling their “portable knowledge” in different post-colonial contexts. See Donna Mehos and Suzanne Moon, “The Uses of Portability: Circulating Experts in the Technopolitics of Cold War and Decolonization,” in: Gabrielle Hecht (ed.), Entangled Geographies: Empire and Technopolitics in the Global Cold War (Cambridge MA: MIT Press, 2011), 43–74.
[5] Pierre-Yves Donzé, “The Advantage of Being Swiss: Nestlé and Political Risk in Asia during the Early Cold War, 1945–1970,” Business History Review 94, no. 2 (2020), 373–97, 375-376.
[6] For the use of the term ‘Third World,’ please see the note on terminology.
[7] Up until 1970, multinational oil companies held incredible privileges: According to Garavini, they controlled around 80 percent of the world’s oil exports and accounted for 90 percent of production in the Middle East. Giuliano Garavini, After Empires: European Integration, Decolonization, and the Challenge from the Global South 1957-1986 (Oxford: Oxford University Press, 2012), 166.
[8] Proponents in their calls for a better investment protection often cited these two cases to illustrate the need for an international investment regime.
[9] Die rechtliche Problematik privater Auslandsinvestitionen, Vortrag von Herrn Abs am 16.12.1968 in Karlsruhe vor der “Juristischen Studiengesellschaft,” DBA V01/4413.
[10] Nicolás M. Perrone, Investment Treaties and the Legal Imagination: How Foreign Investors Play by Their Own Rules (New York: Oxford University Press, 2021), 2 (emphasis in the original).
[11] Association de Droit Minier et Pétrolier, Doc. 95/59, Rapport du Secrétaire Générale, TEA 50ZZ572/-15.
[12] Association de Droit Minier et Pétrolier, Le Colloque d’Aix, protection des investissements pétroliers, TEA 50ZZ572/-25.
[13] “Der Schutz des Privateigentums,” Schweizerische Finanz Zeitung, October 29, 1959, SWA Vo J IX 3b.
[14] Memorandum (preface pour Réunion Cte de Direction Decembre 58), November 28, 1958, TEA 21V00621-5.
[15] I will outline the chapter structure and contribution of this work after the literature review.
[16] The Compagnie Française des Pétroles (today TotalEnergies) was a driving force behind both the Association de Droit Minier et Pétrolier and the APPI.
[17] Email from Christopher Brandon to Nicolas Hafner, April 25, 2021.
[18] Abs was a founding and key member of the APPI.
[19] The APPI secretariat created a wealth of documents. For instance, during 1967, it sent out over 1000 circulars to the APPI members, of which only a tiny fraction is available at TEA 50ZZ572/-29.
[20] List of Contents of APPI Archives, letter from L.H. Sandberg to Dr. Ulf R. Siebel, July 10, 1974.
[21] Minutes of the APPI Meeting on November 9th and 10th in London, November 1981, DBA V01/4426. Email from Bruno Fischer to Nicolas Hafner, March 10, 2021.
[22] Herrn Abs, Notiz, betrifft: APPI Protokoll über die Sitzung des Directing Committee vom 7. Dezember 1962, undated (presumably December 1962), DBA V01/4406.
[23] Remarks in letters like “I will phone you on this matter” or “we should discuss this issue when we meet” suggest this.
[24] Such a reading is reminiscent of Arno Mayer’s understanding of the international system as a constant conflict between the forces of change (or movement) and the forces of order. See Michael Fry and Arthur Gilbert, “A Historian and Linkage Politics: Arno J. Mayer,” International Studies Quarterly 26:3 (1982), 425–444.
[25] Sundhya Pahuja, Decolonising International Law: Development, Economic Growth, and the Politics of Universality (Cambridge: Cambridge University Press, 2011), 1.
[26] Ibid., 41.
[27] Ibid., 2. The imperial dimension of international law and the consequences for the international history have received a lot of scholarly attention. To mention a few of the main publications: Matti Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870–1960, (Cambridge: Cambridge University Press, 2001), 98-178. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge and New York: Cambridge University Press, 2004). Lauren A. Benton, and Lisa Ford, Rage for Order: the British Empire and the Origins of International Law, 1800-1850 (Cambridge, Massachusetts: Harvard University Press, 2016). Coates, Benjamin Allen. Legalist Empire : International Law and American Foreign Relations in the Early Twentieth Century. New York, NY: Oxford University Press, 2016.
[28] Antony Anghie, Imperialism, 199. Similarly, Gerry Simpson argues that despite formal egalitarianism in the international system, legal hierarchies persist because of the hegemonic aspirations of more powerful states. Gerry J. Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge: Cambridge University Press, 2004). See also James Tully, “On Law, Democracy and Imperialism,” in Emilios Christodoulidis and Stephen Tierney (eds.), Public Law and Politics: The Scope and Limits of Constitutionalism (Aldershot: Ashgate, 2008).
[29] Pahuja, Decolonising International Law, 7.
[30] Ibid., 3.
[31] Pahuja, Decolonising International Law, 3. For Easterly, see William Easterly, The White Man’s Burden: Why the West’s Efforts to Aid the Rest Have Done So Much Ill and So Little Good (Oxford, New York: Oxford University Press, 2006). By “provincializing” Europe, Chakrabarty wants to draw attention to the fact that European ideas with a claim to universality themselves emerge from “very particular intellectual and historical traditions.” He is interested in how thought is related to place. See Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton University Press, 2007), xiii.
[32] John Kelly and Martha Kaplan, “‘My Ambition is much Higher than Independence’: US Power, the UN World, the Nation-state, and their Critics,” in Prasenjit Duara (ed.), Decolonization: Perspectives from Then and Now (New York: Taylor & Francis, 2004), 131-51. Sornarajah writes that the international law governing this order was drawn up to protect the “hegemonic” interests of the powerful states. Muthucumaraswamy Sornarajah, “Power and Justice in Foreign Investment Arbitration,” Journal of International Arbitration 14 Issue 3 (1997), 103-140, 104.
[33] Pahuja, Decolonising International Law, 54. As Anghie observes “the native is granted personality in order to be bound.” Anghie, Imperialism, 105.
[34] Partha Chatterjee, Nationalist Thought and the Colonial World: A Derivative Discourse (Tokyo: Zed Books, 1993), 30. The most famous work that promoted a teleological and stagiest view of economic development was probably Walt Rostow’s The Stages of Economic Growth: A Non-Communist Manifesto (Cambridge: Cambridge University Press), 1962.
[35] Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination (Princeton: Princeton University Press, 2019), 98.
[36] Pahuja, Decolonising International Law, 46.
[37] Anghie, Imperialism, 204.
[38] Pahuja, Decolonising International Law, 55-58; quote: 55.
[39] Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (New York: Oxford University Press, 1994), p. 205.
[40] Pahuja, Decolonising International Law, 58.
[41] Ibid., 74-75. For the assertion that economics’ main assumptions are based upon faith, she draws heavily from the works of Robert H. Nelson. For him, the major theories of economics should be seen in the intellectual tradition that they emerged, namely the religious thought that shaped Western culture. As Max L. Stackhouse writes, Nelson shows that in the field of contemporary economics “unacknowledged religious assumptions pervade the commitments of currently distinguished and influential figures.” Accordingly, the foundations of the discipline are “rooted in unexamined presuppositions that are more like faith commitments than in ‘pure’ scientific hypotheses,” they are thus “morally and spiritually laden.” Max L. Stackhouse, “Foreword” in Robert H. Nelson, Economics as Religion: From Samuelson to Chicago and Beyond (State Park: Pennsylvania State University Press, 2001), xi-xii.
[42] Pahuja, Decolonising International Law, 96.
[43] Ibid., 111.
[44] Ibid., 133.
[45] Ibid., 127. The idea of a world of two overlapping spheres was according to Quinn Slobodian central to the imagination of Geneva School neoliberals. Accordingly, they followed in their imagination of the global the sketch provided by Carl Schmitt who found that there were two worlds, namely the realm of imperium, in which the world was “partitioned into bounded, territorial states where governments ruled over human beings” and the world of dominium, in which people “owned things, money, and land scattered across the earth.” What would in their ideal maintain the balance between the two global spheres was an “enforceable world law.” See Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism. (Cambridge, Massachusetts: Harvard University Press, 2018), 10.
[46] Anghie, Imperialism, 209.
[47] Kate Miles, “International Investment Law: Origins, Imperialism and Conceptualizing the Environment,” Colorado Journal of International Environmental Law and Policy 21, no. 1 (Winter 2010), 1-48. Charles Lipson, Standing Guard: Protecting Foreign Capital in the Nineteenth and Twentieth Centuries (Berkeley: University of California Press, 1985).
[48] Kate Miles lists as strategies “the securing of ‘friendship, commerce and navigation’ treaties, the acquiring of concessions, diplomatic pressure, capitulation treaties, extraterritorial jurisdiction, military intervention, and colonial annexation of territory.” Kate Miles, The Origins of International Investment Law: Empire, Environment, and the Safeguarding of Capital (Cambridge: Cambridge University Press, 2013), 23.
[49] Muthucumaraswamy Sornarajah. The International Law on Foreign Investment (Cambridge: Cambridge University Press, 2017), 20.
[50] Ibid., 21. See also Anghie, who writes that the Latin American countries “confronted the problem that although they were sovereign, they lacked economic and political power, and had to contend with a system of international rules that they regarded as biased against their interests.” Anghie, Imperialism, 209. Similarly: Lipson, Standing Guard, 16-18.
[51] Miles, Origins, 55.
[52] Ibid., 32.
[53] Perrone, Legal Imagination, 2.
[54] The following list follows largely Miles’ enumeration, see Miles, Origins, 85.
[55] Havana Charter for an International Trade Organization (1948) UN Conference on Trade and Employment, UN Doc. E/CONF.2/78, Sales no. 1948.II.D.4.
[56] International Chamber of Commerce, International Code of Fair Treatment of Foreign Investment (1948) reprinted in United Nations Conference on Trade and Development (UNCTAD), International Investment Instruments: A Compendium (New York: United Nations, 1996), vol. 3, p. 273.
[57] International Law Association, Draft Statute of the Arbitral Tribunal for Foreign Investment and the Foreign Investment Court (1948), reprinted in UNCTAD, International Investment Instruments: A Compendium, p. 259.
[58] Hermann J. Abs and Hartley Shawcross, “The Proposed Convention to Protect Foreign Investment: A Round Table: Comment on the Draft Convention by its Authors,” Journal of Public Law 9 (1960), pp. 119-24.
[59] Organization for Economic Co-operation and Development (OECD), Draft Convention on the Protection of Foreign Property (1967), available at www.oecd.org/dataoecd/35/4/39286571.pdf [last accessed 20.04.2021].
[60] Perrone, Legal Imagination, 2 (emphasis in the original).
[61] Ibid., 3 (emphasis in the original).
[62] Ibid., 4.
[63] Stephanie Triefus, ‘Interview with Nicolás M. Perrone: Investment Treaties and the Legal Imagination – Part I: How we imagine international investment law’ on ILA Reporter, 13 April 2021, http://ilareporter.org.au/2021/04/interview-with-nicolas-m-perrone-investment-treaties-and-the-legal-imagination-part-i-how-we-imagine-international-investment-law/
[64] Perrone, Legal Imagination, 55. For a list of the Directing Committee’s members in 1966 see Appendix I.
[65] Taylor St John, The Rise of Investor-State Arbitration: Politics, Law, and Unintended Consequences (Oxford: Oxford University Press, 2018), 84.
[66] See for instance, Earl Snyder, “Protection of private foreign investment: examination and appraisal,” International & Comparative Law Quarterly vol. 10 no. 3 (1961), p. 469-494. A. A. Fatouros, “An International Code to Protect Private Investment – Proposals and Perspectives” Articles by Maurer Faculty 1797 (1961). https://www.repository.law.indiana.edu/facpub/1797. Earl Snyder, “Foreign investment protection: a reasoned approach,” Michigan Law Review vol. 61 no. 6 (1963), p. 1087-1124. Michael Brandon, “Multilateral Approaches to the Promotion and Protection of Private Foreign Investments,” International Development Review VI, no. 2 (1964).
[67] Perrone, Legal Imagination, 8. According to Taylor St John, a “few individuals with personal experience of expropriation dominate the surviving records, having spearheaded investor involvement in their own countries and transnationally.” By far the “most important of these individuals” was Hermann Josef Abs, a “towering figure in German finance” whose involvement was “more a personal crusade to right past wrongs committed against Germany.” See St John, The Rise of Investor-State Arbitration, 69 and similarly on page 74: “his [Abs’] work to promote investment protection in the 1960s was not ordinary lobbying: it was a crusade emerging from his personal experiences of expropriation before, during and after the war.”
[68] Pahuja, Decolonising International Law, 160.
[69] Taylor St John, The Rise of Investor-State Arbitration: Politics, Law, and Unintended Consequences (Oxford: Oxford University Press, 2018), 69 and 109.
[70] In fact, the APPI in its early stages considered setting up a private investor-state arbitration tribunal under its auspices. See chapters one and two.
[71] APPI Doc. 7/69, Meeting of the Directing Committee in Vienna (May 9, 1969), May 22, 1969, DBA V01/4413.