Accessible Unlicensed Requires Authentication Published by De Gruyter October 12, 2018

Must We Protect Foreign Investors?

Johannes Kniess

Abstract

Investment protection clauses, and the investor-state dispute settlement (ISDS) mechanisms they enable, have become a common feature of international agreements on trade and investment. Intended to promote foreign investment, these protections may also discourage governments from regulating in the public interest. This raises challenging normative questions about the rights of investors and distributive justice. In this paper, I argue that a global investment regime that disadvantages developing countries and socially disadvantaged groups is prima facie unfair. This conclusion must be defended against the claim that investors have certain independent moral rights to have their property protected, regardless of the distributive consequences. Granting the premise that such investor rights exist, I argue that these cannot plausibly ground a general rule against public interest regulation that undermines the value of property. I conclude that even if foreign investors have rights that must be safeguarded, the current investment regime must be reformed.

Acknowledgements

I owe thanks to Chuck Beitz, Shuk Ying Chan and Harrison P. Frye for commenting on earlier drafts of this paper. I am also indebted to two anonymous reviewers and the editors of Moral Philosophy and Politics for their helpful suggestions.

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Published Online: 2018-10-12
Published in Print: 2018-11-27

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