International Investment Law: The Anarchical Society Where Development and Sustainability Are Frenemies and Participation Plays Gooseberry

It can be said that development and international investment law are blood relatives, as the purpose of investment treaties is ultimately that of fostering economic growth (which is allegedly ensured by protecting investors’ rights). However, development is definitely not the same thing as sustainable development, and the former can even run counter sustainability. A relatively recent trend can be detected which attempts to amend investment law so as to promote sustainability. The meaning to be attached to this word, however, is multi-faceted. Due to the bilateral nature of international investment law, therefore, the idea of sustainability must be approached in two steps: first by positing which factors may ensure sustainability (eg labour rights, health and environmental protection, anticorruption) and then by searching the plethora of existing investment treaties, laws and contracts to understand if and how they incorporate such factors. Currently, these factors also include various forms of participatory processes, which, if not an incarnation of sustainability, are generally believed to be supportive of it. However, this issue has not yet been properly addressed by legal scholars; the next frontier is to weave together the strands of participation and sustainable development in investment law to gain a better understanding of how they interact.