I have a chapter with Kyla Tienhaara in a new book honoring M. Sornarajah, the esteemed legal scholar.
The book is called “Alternative Visions of the International Law on Foreign Investment: Essays in Honour of Muthucumaraswamy Sornarajah.” Here’s the publisher description:
This book is about the forces that are reshaping the international law on foreign investment today. It begins by explaining the liberal origins of contemporary investment treaties before addressing a current backlash against these treaties and the device of investment arbitration. The book describes a long-standing legal-intellectual resistance to a neo-liberal global economic agenda, and how tribunals have interpreted various treaty standards instead. It introduces our reader to the changes now taking place in the design of a range of familiar treaty clauses, and it describes how some of these changes are now driven not only by developing and emerging economies but also by the capital-exporting nations. Finally, it explores the life, career and writings of Muthucumaraswamy Sornarajah, a scholar whose work has been dedicated to the realisation of many of these changes, and his views about the hold global capital has over legal practice.
The chapter written by Kyla and me (“Regulating foreign investment: Methanex revisited”) focuses on the legacy of a particular pro-state case (Methanex v. USA) and Sornarajah’s interpretation of it in a 2005 article. From our introduction:
The modest aim of this chapter is to track the impact of the Methanex decision on expropriation since it was promulgated a decade ago. In doing so, we endeavour to assess whether Sornarajah’s optimism about the revival of a regulatory exemption from expropriation was well founded. … We seek to establish whether Methanex was a one-off ‘easy’ case or instead has helped to establish a pattern of decision-making in investment arbitration that is deferential to states and thereby acts to preserve policy space.
To achieve this aim we first revisit the facts of the Methanex case (Section II) and highlight how the tribunal’s interpretation of indirect expropriation diverged from the case law up to that point. Then, with Sornarajah’s concern that the “writings of ‘highly qualified’ publicists” have been overly influential in international investment law in mind, we assess the reaction to the Methanex decision in the academic literature (Section III).
In Section IV, we ask whether there has been “less fervour in basing claims on expropriation” post-Methanex. Related to this, we also address whether there has been a “shift to the other heads of liability under the investment treaties, namely treatment standards”. We further examine whether the Methanex decision has had a strong (informal) precedent effect by tracing references to it in subsequent awards. We disaggregate the data based on the development status of the country to address Sornarajah’s concern that the benefits of the Methanex decision might be confined to powerful states like the US…
we conclude that the Methanex case has not had the impact hoped for by Sornarajah and others. The enthusiasm of investors to claim indirect expropriation has not been dulled. While it is true that expropriation claims often fail, this is not attributable to an acceptance of the Methanex approach, which has actually been followed in very few subsequent cases.
This analysis casts doubt on the ability of ISDS litigants to invest in test cases and strategic precedent creation – a common way that governments and other social actors have used to channel development of the law in desired directions.