26 March 2021

The Underlying Values of International Investment Law

In his PhD thesis in International Law, Michal Jakub Swarabowicz spells out the extent to which creative interpretation by investment-treaty arbitration draws on arguments and assumptions from past, often quite distant, historical contexts. Instead of focusing on changes in treaty drafting, he more fundamentally focuses on changes in thinking about the role international law rules play in protecting foreign business interests. 

Why are you interested in investment law?

I am interested in the international law’s involvement in regulating the economy and private enterprise more generally. Coming from a post-industrial city in Poland, I have always been interested both in economic regulation and its historical and ideological evolutions. Investment law, produced by arbitration tribunals and arbitration practitioners, is a relatively new and often divisive field of international law. After having read through a number of arbitration cases, I focused my inquiry on the subtextual premises which made their legal reasonings possible. Situating investment law decisions, together with their premises, against a broader panorama of the evolving international legal discourse helped me to engage, at a deeper level, with often unarticulated values that arbitrations in such disputes champion. I tried to steer away from criticising solutions in individual cases, or making broad, unverifiable and ideologically charged statements about international law.

What was the purpose of your thesis?

I wanted to help international lawyers to think about protection of business interests by international law more generally, instead of thinking within the confines of investment law as a legal regime. Instead of treating international investment protection as solely driven by a clash of economic interests, I sought to explain how the ideational strata of investment law developed through the changing political and intellectual conditions. I was particularly interested in explaining how the parameters of our thinking about international law’s role in protecting foreign enterprise changed over time. Reading through the arbitration cases and connecting them with older legal materials, I discovered how different, historically contingent, and often contradictory and undertheorised, rationales for protecting foreign enterprise survive in legal discourse and keep informing decisions in individual disputes.

For instance, I show how arbitral tribunals came to consider the investor-State relation as having attributes of a contract. The transactional lens used in international law to analyse the investor-State relation permeates a large array of seemingly disparate legal problems. International legal principles construing the investor-State relationship first emerged as an answer to the problem of conciliating the State’s sovereign prerogatives with its obligations as a contractor. The evolutions of investment law in the past twenty years, together with its many controversial forays into the State’s regulatory autonomy, could be best explained as adaptations of these past legal authorities to the context of the free movement of private capital. This explains why arbitrators often analogise flows of private capital to bilateral transactions, with an effect of sanctioning regulatory adjustments to the changing macroeconomic climate as treaty breaches. I think that being conscious of the weight that past theories still exercise in this relatively new field of economic disputes is a step towards a fundamental rethinking of the role international law plays in protecting economic interests.

What could be the policy implications of your thesis?

In the policy debates, investor-State dispute settlement (ISDS) is often portrayed as “sticky” and notoriously difficult to reform. Many lawyers and political scientists advance theories about why States subscribed to a legal regime they perceive as skewed in favour of multinational enterprises. By focusing my lens on creative interpretation by decision-makers and on the weight that past contexts exercise on the present decision-making, I present the area of investment law as much more prone to change than it is usually assumed. Turning to differences in historical contexts which still inform legal interpretation may give clues as to the causes of the current backlash against the ISDS. It also allows me to be optimistic about possibilities for the theoretical change existing within the confines of the dominant legal discourse.

What are you doing now?

Currently, I am developing my research agenda further in the direction of critical legal history of the international law’s engagement in regulating global economy more generally. I will focus on the circulation of ideas between international law, business expertise, and economic and political theory as a way to explain why and how certain risks and economic interests came at the forefront of international legal discourse in certain historical times. This will help me to write about fundamental assumptions and intellectual constraints behind past and present projects aimed at formalising precepts of economic governance into a rule-based legal system. 

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Michal Jakub Swarabowicz defended his PhD thesis in International Law in February 2021. Associate Professor Fuad Zarbiyev presided the committee, which included Professor Zachary Douglas, thesis supervisor, and Thomas Schultz, Professor at the Faculty of Law of the University of Geneva.

Full citation of the PhD thesis:
Swarabowicz, Michal Jakub. “The Construction of International Investment Law within International Law Argumentation.” PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2021.

For access, please contact Dr Swarabowicz.

Interview by Nathalie Tanner, Research Office.
Banner picture: textile factory in Łódź, Poland, owned in the 19th century by the French Compagnie Générale des Industries Textiles. Its nationalisation by the Polish authorities in 1946 was settled by a lump sum agreement between Poland and France, an early example of investment protection. After the factory’s bankruptcy, the site has been taken over by a Spanish investor. Michał Swarabowicz lived the first 18 years of his life in the company town, still in existence and visible on the engraving.