An Empire of Capital? Transatlantic Investment Protection as the Institutionalization of Unjustified Privilege

Abstract

The field of investor state arbitration is historically connected to purposes and contexts, which are strikingly different from the contemporary world of trade and investment relations between liberal constitutional democracies. What might conceivably have been a mutually useful policy instrument in the relationship between developing and developed countries has no plausible role to play in the relationship between developed liberal constitutional democracies. The idea of investment arbitration as a field with its own separate dispute resolution infrastructure should be seen as an inherently dubious transitional phenomenon that deserves to wither away over time, rather than being reformed.