This chapter engages with the Palestine Railway Arbitration of 1922 and draws out the techniques applied in the arbitration that framed new ways of protecting private property and laid the groundwork for the internationalisation of concession agreements. The chapter describes how introduction of the Mandate System and the inclusion of concession agreements into peace treaties (under the jurisdiction of mixed arbitral tribunals) enabled the advanced protection of private property on the international plane with special attention to the underlying modes of authorisation. It shows how these transformations can be understood as practices of jurisdiction that rely on a mode of self-authorisation. The Palestine Railway Arbitration is particularly illuminating of this point for two reasons. First, from a purely doctrinal perspective, the arbitration is full of formal flaws. It therefore raises the question of the source of the authority of law more pressingly than other arbitrations. Second, it appears that most legal inventions and changes were made out of a sense of necessity without much theorising. These observations point towards an account of law that is attentive to the actual practices of the actors involved.

This chapter outlines the framework and argumentative structure of the book. It introduces the assertion of jurisdictional authority over concession agreements, which is the key site of the analysis. While concession agreements in the 1920s were considered exclusively a matter of domestic law, in the 1950s a powerful community of scholars and practitioners argued that they should fall under an international legal order and be called ‘economic development agreements’. This internationalisation was a claim for the universality of ideas propagating private property and the sanctity of contract, as well as a rejection of the authority of socialist and anti-colonial policies to redistributive ends. Western industry, former imperial governments and liberal thinkers of law and of economics successfully claimed the international sphere for building a new legal order. The authority for such an international legal regime was based on a temporalisation of difference that relied on concepts like ‘civilisation’ and development to downgrade challenges to the rules of property protection by locating such challenges in the past. This was a process of self-authorisation through legal practice and academic writing, laying the groundwork for the later emergence of the regime of international investment law.