Did colonialism end with decolonization? This chapter identifies threads of discursive continuity between historic colonialism and the contemporary regime for the protection of foreign investment. Those threads concern a single-minded focus on profitability and privilege, the claim that domination produces economic improvement, a prevailing distrust of local self-rule and the construction of enclaves that preserve legal entitlements for privileged classes of foreigners. Each of these features, found in colonial forms of argumentation documented by Albert Memmi and Frantz Fanon, among others, are inscribed in the discourse and practices of investment treaty law and arbitration.

In chapter 6, I argue that the representative system that was chosen at the “founding moment” was not thought of as a “second-best” or “necessary evil” system, but rather as a “first option”, preferable to its alternative (some form of direct democracy). Representation—in accordance with “democratic distrust”—was to “filter” or “purify” (instead of “recognizing” or “expressing” or “allowing its refinement through debate”) the citizens’ voice through the sieve of “a chosen group of citizens.” This original representative scheme was explicitly chosen because it was thought that, going back to Madison’s words, the “public voice, spoken by the representatives of the people, is more in line with the public good, than if it had been pronounced by the people themselves, summoned for that purpose.” I argue that representative system was subject to risks that its own proponents recognized, and that with the passage of time materialized: representatives who were “too removed” from their constituents, who fail to recognize the citizens’ demands and needs; who begin to act according to their own interests in disregard for or against the interests of the voters; who form a “class” or “caste” and begin to act primarily for the benefit of that group.