Agency and Change in International Investment Law: Making Investor Obligations

• Department of Law

PhD defence by Katarina Lundahl

Regulating foreign investors under international law was once a contested proposal advanced by materially weaker actors amid resistance from powerful states and industry. Yet, some investment agreements have included investor obligations since the 1980s. Subsequently, they have been included in dozens of agreements in various manifestations. Departing from doctrinal analyses and histories of failure in previous scholarship, this study investigates how and why investor obligations emerged in investment agreements and employs this development to understand contested change in the investment treaty system more generally. The thesis offers the first qualitative, historical investigation of investor obligations as a new category of rules in investment agreements by tracing their emergence from 1967 to 2008 through treaty negotiations, campaigns, and reform projects. Combining a socio-legal historical method with theoretical insights from the social sciences, the thesis reconstructs seven sites of action where investor obligations were debated and transformed into viable alternatives, social norms, and treaty rules. Contrary to critical histories that view large-scale social and political transformations as preconditions for a fundamentally different law, and accounts that reduce the agency of materially weaker actors to resistance, the thesis argues that institutional environments were islands of opportunity for agency and change within the otherwise decentralised treaty system. Investor obligations did not emerge because someone was powerful enough to impose their agenda, or the ideal conditions for fundamental change aligned. They emerged from recurring efforts to reconcile distributive tensions generated by the deployment of global investment law in new institutional environments. By reconstructing the transformation of a once-contested idea into law, the thesis recovers investment law’s past legitimacy challenges, widens our knowledge of the treaty system beyond dominant actors and their practices, and offers inspiration and guidance for actors seeking reconciliation in the present.

This event will be held in a hybrid mode. The Zoom link will be shared with participants upon registration.