Excerpted From: Olabisi D. Akinkugbe, Race & International Investment Law: on the Possibility of Reform and Non-retrenchment, 117 American Journal of International Law 535 (July, 2023) (47 Footnotes) (Full Document)


Edited by Jeffrey L. Dunoff,  Investment Law's Alibis: Colonialism, Imperialism, Debt and Development. By David Schneiderman. Cambridge, UK: Cambridge University Press, 2022. Pp. ix, 235. Index. Investment Arbitration and State-Driven Reform: New Treaties, Old Outcomes. By Wolfgang Alschner. New York: Oxford University Press, 2022. Pp. xxvii, 310. Index.


OlabisiDAkinkugbe.jpegThe international investment regime is in flux. The mainstream practice of investment law and arbitration works on the basis of the regime's foundations in contract and property law. However, critical scholarship in the field has unearthed the coloniality of power that permeates both the practice of international investment law and the current reform exercise led by the United Nations Commission on International Trade Law (UNCITRAL)Working Group III. These critical scholars warn of the imminent reproduction and entrenchment of the systemic inequities, power asymmetries, and investment law's investor-state dispute settlement (ISDS) regime which is skewed against post-colonial host states. The two books under review offer a range of thought-provoking approaches for analyzing the past, present, and future of investment law. This Review Essay categorizes these books into two modes of critical scholarship on international investment law: moderate and radical. In Part II, I flesh out the conceptual categories of moderate and radical critique. In Part III, I analyze the books under review through the lens of these two conceptual frameworks. In Part IV, I turn to the question of race and investment law. This Review Essay suggests that race should not be neglected in our analysis of the past, present, and, most importantly, the future of investment law--a core theme that both books under review does not engage with. Part V briefly concludes.

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While the calls for systemic reform of investment law are rife, the path ahead remains deeply contentious. Reform of the investment regime is being undertaken in the shadow of geopolitical tensions between imperial powers, intensified climate change debates, and calls for reform of international financial institutions and the World Trade Organization. There are no easy answers to the challenges that the reform of the investment regime pose, yet any reforms must be inclusive and truly account for the systemic concerns of the Third World. Exorcizing the purveyors of the expansion of power and imperialist legacies is a major task for both moderate and radical critical international investment scholars. The two books under review provide fruitful, and complementary, insights as we collectively consider the path ahead.