Wherefore Art Thou? Towards a Public Interest-Based Justification of International Investment Law

Critics consider international investment law (IIL) and investor–State dispute settlement (ISDS) to be a threat to global public interests, such as environmental protection, labour standards, public health or human rights, and portray them as one-sidedly protecting foreign investors and undermining public policies that are adopted for the benefit of local populations and the international community as a whole. They also dismiss economic justifications of the system as unfounded. The present article suggests a different approach to the justification of IIL, arguing that, properly construed, IIL can be justified as a system that, on aggregate, promotes global public interests. First, the article shows how IIL and ISDS form part of the legal infrastructure that is necessary for the functioning of the global economy under a rule of law framework. Aimed at supporting global economic growth and welfare, this helps further not only economic, but also non-economic, global public interests, such as sustainable development. Second, the article argues that IIL and ISDS do not turn a blind eye to the conflicts that can arise between economic and non-economic public interests. Instead, IIL and ISDS have numerous, although admittedly imperfect and as of yet insufficiently utilized, mechanisms at their disposal for alleviating ensuing tensions, thus allowing both economic and non-economic global public interests to be advanced at the same time.