To mark the 2021 International Women’s Day themed #Choose to Challenge, Afronomicslaw.org celebrates Dr Dilini Pathirana’s brilliant contributions to International Investment Law. Dr Pathirana is a Senior Lecturer at University of Colombo, a founding committee member of South Asia International Economic Law Network (SAIELN), an editorial board member of Sri Lanka Journal of International Law (SLJIL) and a contributing editor on Afronomicslaw.org.
International Investment Arbitration
In this book, the author took the interdisciplinary approach to explore the application of the FET clause in the IIAs between developed and developing countries as well as its subsequent effects on the socio-economic context of the developing state. The main aim of this book as stated in p. 171 is to re-conceptualize the FET clause from the perspective of the host States with comprehensive consideration of their social, political, and economic conditions.
Probably buoyed by its relatively open-ended nature, the fair and equitable standard (FET) of protection of foreign investors has become a much more invoked arsenal than the claim of direct or indirect expropriation. As Professor Sornarajah notes in his foreword to the book, very few scholars have dealt with the impact that the relatively opaque, if not expansive interpretations of the FET standard by arbitrators has had on the host States, particularly those from the global South. Professor Rumana Islam’s work is a notable exception to this.
The book flees from a Manichean vision of international investment law. It is not written against foreign investors and in favor of developing States. With a scientific caution, the author reflects on how bridges can be built between these two actors with the aim of upholding development priorities without undermining investors’ protection — thereby hinting at a fair and equitable treatment for host developing States
The overarching argument made in the book is that there is a pressing need to reconceptualize the interpretation of the FET standard, taking into account the particular developmental circumstances of the developing countries in investor-State disputes. The book explores these challenges and issues that the developing countries face arising from overly broad interpretations of the FET standard.
I propose that it is our current and future battles that will determine the meaning and impact of decolonisation in Africa and beyond. As things stand now, the dead are certainly not safe. Let me elaborate on this claim drawing from Professor Taylor’s work: his piece draws from the classics of Third Worldist Marxism and dependency theory to provide a sober account of Africa’s nominally post-colonial present.