5 - The Difficulty of Decolonizing Investment Law

Summary

The principal argument of this chapter is that the legal security provided to foreign investors by investment law exhibits features characteristic of the legal hegemony achieved by colonial settlers over Indigenous peoples. If colonial power authorized settlers to displace Indigenous communities, contemporary legal relations appear to reinscribe a similar disregard for Indigenous rights and title. Not only does investment law exhibit indifference but investment arbitration reveals complicity in violating rights. This is exhibited by investment tribunal disinterest in penalizing investors for the exacerbation of, and responsibility for, inter-societal conflict that leads to dispossession, violence and even death. A sampling of cases reveals that tribunals prefer not to reject investor claims, or reduce damage awards, in circumstances where investors have been implicated in this maltreatment and subjugation of Indigenous peoples. What is revealed is that international protections for metropolitan-based entrepreneurs consolidate victories secured by the internal colonialism of Indigenous peoples in the Americas.