The Precautionary Principle has primarily found a place within the international environmental law regime, and to some extent, the international human rights regime. It is also, arguably, considered to be a principle of customary international law. While the international investment law regime has traditionally resisted (and still does) incorporating principles from other regimes, a few innovative International Investment Agreements (IIA) have gone against the grain and expressly incorporated principles of international environmental and human rights law. This chapter draws upon a clause in the Nigeria-Morocco Bilateral Investment Treaty (BIT) of 2016 which mandates that both the investor and the host state shall apply the precautionary principle to their investments. It will enquire whether the precautionary principle has achieved that normative status of customary international law which allows it to be binding on host states by virtue of inclusion in a BIT. Second, it will enquire whether the precautionary principle can be binding on foreign investors as non-state actors.

This chapter argues that the systemic integration of customary international law in the interpretation of investment treaties should equip vulnerable polities with principled arguments for why a high degree of deference is warranted in their adoption of regulatory measures to address the health, economic and social dimensions of chronic crises. The chapter reviews the recent demand for governments to protect their right to regulate by imposing a moratorium on investment treaty claims. This critical discourse has overlooked the deeper roots of the State’s presumptive right to regulate without compensation, an expression of its territorial sovereignty under customary international law. Evident across landmark decisions such as the Oscar Chinn Case, the Iron Rhine Arbitration and Philip Morris v. Uruguay, the regulatory dimension of territorial sovereignty both preceded and endured the mid-century debate over the standard of compensation for nationalisation and the subsequent rise of investment arbitration. In contemporary practice, the customary rule that there is no State responsibility for reasonable regulation may be integrated through arbitral practice to ensure each claimant bears the burden to prove that regulatory measures were unreasonable, discriminatory, or adopted in bad faith.

Managerial justice continues apace with the recent Independent Expert Review of 2020. Yet such an exercise – managerial in its assumptions, diagnoses, and techniques – sounds a familiar tune once we observe the court’s managerial present and its macro, micro, and meso scales of managerial governance. This concluding chapter therefore asks how this institutional terrain, saturated with management thought and practices, might be navigated by those concerned about its relationship to global justice efforts. Rather than posing a series of policy prescriptions, this chapter instead suggests a professional posture or strategy of discomfort that experts and others might assume in resisting managerial justice. Drawing on Vergès’s strategy of rupture, Weber’s ethic of responsibility, and the decolonial movement, a strategy of discomfort resists the urge to look for solutions in either the complete removal or partial renovation of management. Rather, it proposes that experts admit to their politics, experience the force of such managerial politics as violence, and experience the responsibility of justice-seeking beyond efficiency savings and the strategic plan.

This chapter focuses on some of the Third World Approaches to International Law (TWAIL)s criticism of investment law and the CIL rules contained therein, and proposes an engagement with this criticism at the stage of interpretation. Based on an examination of the interpretation of the customary minimum standard of treatment, it argues that interpretation plays two roles in relation to CIL – a constructive and an evolutive role. In light of these two roles, interpretative arguments may be deployed strategically so as to flag problematic rationales in the rules and argue for their re-interpretation. In particular, I propose three interpretive strategies which may achieve this goal, which are differentially suited to the different actors who may wish to deploy them. These strategies are limited by the actors who deploy them, the forum where they are deployed, as well as the rules of procedure in which the dispute takes place. Nevertheless, they present an opportunity for a constructive TWAIL engagement with international investment law which does not summarily dismiss the existing system.

This chapter commences by analyzing the relevance the Permanent Court of International Justice’s judgment in the Chorzów Factory case and the prevailing position that it reflects customary international law on the remedies available for treaty breaches. The analysis then focuses on why references to remedies other than compensation (available under customary international law) are rare in investor-state arbitrations and whether there is a place for restitution and/or declaratory awards in international investment law. If claimants choose to seek restitution, tribunals are empowered to make such an award, unless this is explicitly excluded by the underlying treaty or is practically impossible (or at least inadequate) on the facts of the particular case. The ‘Spanish saga’ cases on renewable energy confirm this approach. Satisfaction, a third type of remedy available under customary international law, a declaratory award, is considered as a ‘paper victory’ which, in practice, is tantamount to losing a case. The final part of this chapter analyzes various issues related to compensation itself, in practice the most important remedy in international investment law.

In 2019, ICC Pre-Trial Chamber II decided not to open an investigation into potential Taliban and US crimes in Afghanistan on the grounds that it would not be in the ‘interests of justice’. In arriving at this conclusion, the judges relied upon management concerns about organisational sustainability and the proposed use of resources to justify their position. While heavily criticised by scholars at the time, the judges’ reasoning alludes to the pervasiveness of management ideas and reasoning throughout the court, even in the realm of legal argumentation. This chapter takes the Afghanistan decision as the starting point for a discussion on management’s relationship to core argumentative dilemmas comprising the ICC legal field. Whether in framing case selection as a matter of court capacity or fashioning past obstacles to victim participation as ‘lessons learnt’, management ideas and practices enact a flight from the dilemmas and complexities of ICC-style justice by experts, deferring critique and sustaining the institutional project of global justice.

Chapter 5 asks why the public continues to support restrictive policies given their considerable economic and rights costs. It identifies the predominant values informing and facilitating the liberal state’s governance of contemporary immigration and its implications for restricting human mobility by focusing on the effects of a threat environment in sustaining the onerous policies of the migration policy playing field. It argues that the persistence of these policies can largely be explained by the continued negative framing of these events by political elites and the mass media. In particular, their conflation of public safety and national security with immigration makes the issue more salient for the public, and the popular legitimacy of restrictive policies is sustained and endorsed by center and extreme Right politicians and political parties. The chapter concludes that the predominance of a security paradigm has shifted the baseline of values salience and realigned popular values and attitudes regarding immigration.

This chapter examines the context and consequences of the Registry ReVision project from the perspective of its management ideas and practices. While championed by Herman von Hebel, newly elected registrar of the court in 2013, ReVision was a long-term project of institutional transformation fostered and executed by external consultants, internal experts, judges, and staff members. While taking place in a wider context of court contention and dissent from certain quarters, ReVision told a uniquely managerial story about the court’s deficiencies and future organisational needs in ways that prioritised certain contexts, problems, and voices over others. And although its effect was to depoliticise the court, it simultaneously offered this effort as the extent and limit of the court’s own political ambitions. By surveying the actors, practices, and documentation of ReVision, this chapter offers an account of the reorganisation as a project of professional comfort.

Chapter 6 investigates the manifestations of the politicization and securitization of immigration over time in Spain, the UK, and the US, each of which experienced acts of terrorism between 2001 and 2005. The chapter’s objectives are to illuminate the trajectory of inter-political party competition regarding immigration and the propensity of the major parties to securitize and politicize immigration. It plots the interaction of the key variables of our immigration threat politics paradigm as these are illuminated in each country’s political context. Among these are the predominant threat frames, attitudinal influences, popular policy preferences, and patterns of inter-party politics regarding immigration. The evidence reveals that the shift from a predominant economic and/or cultural threat frame to a public safety one precipitates depolitization and a popular and an inter- party consensus regarding immigration in the near term. However, once restrictive policies are embedded and the salience of immigration recedes, familiar patterns of inter-party competition resume.

The chapter scrutinizes the recourse to legal witnesses on points of international law through the lens of the specific texture of customary international law. Part I will present and comparatively assess the abundance of the recourse in investment arbitration to expert witnesses on issues of international law; part II will then proceed to a theoretical analysis which will set, according to a formalist approach of that source of law, and test the hypothesis that international law witnesses in investment arbitration could well be justified when they deal with customary international law. It will conclude that, at most, customary norms may have been the Trojan horse of the recourse to international law experts in investment arbitration since international law witnesses are seldom relied on for the purposes of ascertaining the contents of customary international law. Once the relationship between customary law and expert witnesses will be discarded, Part III will examine an alternative justification which has more to do with the sociology of investment law and with its constant search for legitimacy, than with any formal analysis of the sources of international law.

The Conclusions summarize the book’s findings and revisits the question of whether contemporary liberal states can manage immigration and human mobility in a new security environment. Based on the evidence, we conclude that liberal states in the post-Cold War era are empowered to implement restrictive and illiberal policies by enlisting the cooperation of non-central state gatekeepers and the support of their publics. The chapter then considers the implications of the contemporary migration policy playing field for the civil liberties of citizens and migrants. It also surveys the effects of the 2019-22 Covid-19 pandemic on the course of human mobility worldwide and assesses whether they resonate with the assumptions of the book’s immigration threat politics paradigm. Several emergent inter-generational and values patterns around human mobility and immigration are then identified. We conclude with muted optimism about the liberal compromise elicited by the paradigm shift to embedded securitism. Despite its affront to the core values and principles upon which liberal democracies were founded, the expansion of the migration regulatory field reflects the consent of the governed.

When determining compensation as a form of reparation for the breach of a bilateral investment treaty, investment tribunals generally rely on the judgment of the Permanent Court of International Justice in the Factory at Chorzów case, and Article 36 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, as reflective of customary international law. Progressively, however, investment tribunals have developed a doctrine of ‘equitable considerations’ as a legal proposition capable of affecting the quantification of damages in ways not envisaged in the Factory at Chorzów case. This development is not uncomplicated. While equity may serve as a useful tool in the hands of arbitrators to provide a balanced legal reasoning and arrive at a more acceptable legal outcome, an unprincipled application of equity may have serious repercussions on the integrity of the arbitral award and undermine the legitimacy of the tribunal. Thus, this chapter seeks to provide an analytical framework for the operation of equitable considerations in the context of compensation in investor-State arbitration.