S. International Investment Law

International investment law consists of those international legal principles that define the obligations of States toward the investments of foreign investors within their territory. This seminar, co-taught by international arbitration practitioners, David Pinsky and Paris Aboro of Covington & Burling LLP, aims to encourage students to think deeply and critically about the central issues in international investment law today, by analyzing the historical development of this area of the law. In particular, the seminar will explore the fundamental concerns of States that have driven—and continue to drive—the development of international investment law.

The course will begin by considering international investment law’s origins at the start of the last century. We will look at the legal principles espoused at that time by the United States and other Western countries, when there were few independent countries interested in challenging these views. We will then move to consider the development of dissent in Latin America and in the newly independent states of Asia and Africa that emerged following the Second World War. Our consideration of this period of discord will bring us to discussion of the so-called “Washington consensus” that developed in the 1980s and 1990s, some parts of which are reflected in the thousands of bilateral investment treaties that have been concluded, largely in the last 35 years.

The remainder of the course will focus on those investment treaties, and the many arbitral awards that have interpreted them, to identify (1) key principles of investment law on which a broad consensus has emerged and (2) difficulties that arise in applying those principles to particular situations. Against this background, we will also consider recent issues in international investment law and proposals for reform. We will discuss both common criticisms of investor-State dispute settlement (ISDS) and its benefits. These discussions will include, for example, considerations of how international investment law may influence efforts by States to promote environmental protection, labor rights, or public health, how international investment law might be used to pursue accountability for international wrongs (e.g., harm to Ukrainian investors as a result of Russia’s invasion of Ukraine), as well as more general efforts to ensure that investments serve the long-term interests of the population of the host State. Climate obligations and Ukraine

Instructors: Paris Aboro and David Pinsky