Critiques of TWAIL Perspective and Investment Law

brush ups of TWAIL Perspective and investing virtueCONSTRUCTIVE APPROACH TOWARDS INVESTMENT constabularyCHALLENGING VIEWS OF THE THIRD domain APPROACHESThe conventional view in western states among global legal scholars is that no comprehensible or explicitive three serviceman Approach is unmistakable in outside(a) law of nature. eyepatch it remains undeniable that certain reoccurring issues set forth the same response from deuce-ace ground states1, per scholars the typical view convey is that disparate strands do not weave together a associate of pattern.2 Although they are grouped together beneath Third existence rubric, it is a constitution of no to a greater extent than ad hoc responses to discrete issues. The recognition of the Third valet approach to any(prenominal) extent can barely be categorised as reactive in nature. This is underpined by Wolfgang Friedmann who argues that any difference in the approach taken by underdeveloped countries could be expl ained in terms of their lack of scotchal and political cl come on. Likewise, a match years later the same persuasion is argued that instead of challenging outside(a) laws fundamental assumptions, the one- ternary base cosmos scholars are still concerned with the reactivity of foreign law concentrate oning in regards to their interest.3 westmostern scholars that are change surface sympathetic towards Third World approaches express similar views. For instance, Richard Falk has claimed that even hardcore anti- occidental works by third world scholars entertain been in confidence on western approaches in a moderately non-critical manner. Thus, Falk argues that the emergence of distinctive modes of thought and analysis failed to accompany the process of decolonization, or even to come out upon it.4 Per Falk third world scholars are inclined to avoid any ideologic imprint upon their work, as they want it to work scientific in a Western sense.5 An analogy is created between third world scholars characteristics and Soviet scholars. Soviet scholars were pragmatically oriented towards enabling Soviet bloc intricacy in the prevailing debates in Western international law circles.6TWAIL scholar B.S Chimni supports Falk judge and argues that TWAIL has been stagnant as a critique instead of proposing realistic alternatives to the issue. He makes this criticism clear in a passage from his work While international lawyers from the Third World surrender challenged, often with success, Western perceptions of the score and content of international law and pointed to the inequitable nature of the body of rules bequeathed from the past, they have failed to propose and articulate an alternative approach which is inclusive and internally consistent. In fact, the matter has not received sufficient consideration. It is, in that respectof, not unusual to enchantment back a Third World scholar speaking of rejecting rules which are negative to the interests of gr owing countries embracing a theory of international law and world order which seeks to on the dotify and protect the status quo and has little to say most the development world. This eventually pulls him to assume positions which streng therefore that which he had set out to fight.7A specific mannikin where this perspective is mainly critiqued is from the losers of the NIEO. It is criticised for lacking comprehensiveness and Robert Rothstein claimed that short-sighted stance had been taken hence the reason the governing failed. Rothstein argued that instead of the government be focused on how to create a clear system that depart have two western and third world states common interests and consensual knowledge and technically sound proposals, the focus was on a strategy of confrontation and a have for the acceptance pf biased and polemic principles8 This shows that the TWAIL view is limited and has no practical alternatives to revolutionise the injustice upon third wo rld states. Rather their methods are to flip the legal system and turn it into a bias third world system, which will not therefore lead to any justice and harmony within international law. This supports both Falk and Chimni claim of TWAIL lacking pragmatism and having a positive impact.TWAIL LIMITATION AND much than CONSTRUCTIVE APPROACH TO INVESTMENT REGIME IN INTERNATIONAL LAWEven though the TWAIL critiques has been significant, nonetheless it has been flagged up to have several trick spots.9 One of the fundamental blind spots flagged is the critique to suggest practical ways to remedy the deficiencies within international law (especially international economic governance). Although jurists do highlight theoretical arguments, it fails to suggest inferential solutions in up the injustice upon third world states in the international system. Therefore, it is necessary to brook a constructive solution that will also take the third world states interests into account.The desires of the TWAIL perspective should go beyond being a untarnished instrument of system criticism.10 It should have the ambition to form a constructive engagement therefore, it should develop and lay out ideas that could be expressed in practical terms to improve the governance of international enthronement and economic law. A key issue create countries are faced with in international deal has been competitiveness of liberalization.11 Refers to trade of western countries on invidious terms (PTs) with only chosen developing countries, which is incongruent with GATTs principle of only trading with your most favoured nation. Competitive liberalization is argued to have led to economic success to states such as south Korea (KORUS) and Mexico (NAFTA)12 who benefited from regional trade transcriptions (RTA). further this was at the expense of neighbouring states who stayed relatively underdeveloped.13Evidentially competitive liberalization has a baneful impact on new(prenominal) deve loping states ability to find markets that would bless them a competitive and comparative advantage. In this sense TWAIL could be more effective and remedy this issue by spearheading the creation of geographically wider RTAs embrace regional economic blocs in different parts of the developing world.14 An example of the possible RTA could be between sparing Community of West African States and Mercado Comn del Sur which would be valuable to both regional blocs. Thus, West African states will be able to supply the cotton, which is in demand in South America, due(p) to the growth of the textile industry, while South Americans vice versa would have a market for electronic goods which is becoming inherent in West Africa. This would be an approach that could be imposeed to elicit the participation of developing states in international trade.TWAILs concern in the international investiture governance is primarily related to the inequality of negotiations within arbitration treaty a nd world(prenominal) Institutional Agreements. Per TWAIL a practical approach could be implemented on IIAs, for instance with regards to BITs, developing states can create their give birth lessons. An example of this is apparent from the SADC (Southern African Development Community) BIT model. SADC BIT model consist of the same characteristics of a traditional BIT, just with the addition of strain more towards an equitable, fair and just participation within the foreign investment administration for third world states. The model is a representation of distinct efforts to enhance a sustainable development dimension of future BITs.15 such engagement with the foreign investment regime would create the welcoming purlieu that developing countries use up to enhance participation in the foreign investment regime. Moreover, another unproductive approach from TWAIL within international investment law is the resistance towards investment treaty arbitration. Again, here there is a fail ure to suggest a constructive approach to rectify this problem that the third world are subject to. As apparent in the parapraxis of OCCIDENTAL PETROLEUM CORPORATION v REPUBLIC OF ECUADOR, the withdrawal of Ecuador due to its disregard to the unjust manners of the ICSID did not prevent the ICSID from awarding the largest remedy to the investors which was a rough total sum of $1.7 billion plus 6% interest.16 Consequently a more pragmatic approach for developing states is to implement their own arbitration centres equivalent to the AALCCs regional arbitration centres establishment within the African- Asian region.17 But this should be done with a sustained participation within the current system. The establishments of these centres within the Afro-Asian region has been advantageous as it alleviates concerns of developing states in regards to participating in international arbitration. Besides that, it will promote better engagement in the foreign investment regime and facilitate mor e participation of developing states in the current system. certaintyThis chapter shows that there are flaws within the TWAIL theory and it is a critique perspective earlier than a constructive one. Perhaps there are aspects of the investment regime that bring injustice within international law merely constructive alternatives methods must be suggested to improve the system. This is where the TWAIL theory is limited and other perspectives such as first world scholars should be analysed before a conclusion can be made regarding the international law being unjust.CONCLUSIONThis thesis has discussed the accuracy of the TWAIL theory that investment regime in international law is used as another tool to support the control of the Western world. This commenced by dating the emergence of TWAIL back to decolonization era and ever since the aim of the theory has been to redirect international laws focus to the plight of developing countries.18 TWAIL focuses on the significant paradigm shi ft from the historical relevance of the NEC and NIEO approaches to the regime bias. The regime bias theory has been emblematical of the entire system of international law and is even visible in multinational Institutions such as Arbitration. The regime bias critique illustrates developing countries sceptical attitudes towards the international economic governance which includes both international trade and foreign investment. This is because, as Shalakany argues s the regime bias in international law empowers the investors, who come off as winners within the system at the expense of ignoring the Third Worlds interest.TWAIL argues that the international institutions increases the ideological gap to ensure that there is unequal participation in the system. Corporations being in control of resources in host states already provides constraints on a step towards a just investment regime. This is because it maintains colonial attitude which makes the Third World states passive rather t han active participant in the investment regime. Likewise, the planetary Functioning Institutions have also helped to maintain the dominance of Western States in internationalist Investment by promoting globalization, and making it a mandatory requirement to for Third World States to adopt privatization programmes to create more favourable investment climates for the investors.19Nonetheless a fundamental blind spot20 of TWAIL critiques is that it fails to offer avenues for a constructive engagement of developing countries in the investment regime in international law. TWAILs shortcomings have highlighted the need for a pragmatic solution instead of just being a mere critique21 tool of the international law regime. It has been criticised for being very crying and staying stagnant on the idea of l law responding to Third World interests instead of challenging the fundamental issues in international law. A more pragmatic approach for developing countries in the investment regime is seek to alleviate their concerns and enhance their participation in the system. This would pave the way for a more constructive engagement of developing countries in the investment regime of international law and will also prevent the domination of the Western States, as the lack of participation is part of what has enabled the First World to be so powerful.I can conclude from this thesis that the investment regime in international law is subtle in the way it suppresses the developing countries and maintains the interests of the developed countries. Therefore, it makes it challenging to argue that the whole regime is unjust. However, although the TWAIL approach is rhetoric22 in the nature of its arguments, I agree with the view that part of the key issues that supports the domination of Western States is the amount control they have in the key international institutions for example, US being the largest shareholder in the World Bank. To constructively bring this issue, it could be argued that the starting point should be reconstructing the rules and process making of these institutions, in order for there to be a fair just and fit participation between the less developed and developed states. There should then consist of a body who makes checks and balances to ensure that no states acts ultra vires. This would lead to an international law that would reject bias and be based on mutual interests.1 Karin Mickelson Rhetoric and Rage Third World Voices in International Legal Discourse16 Wis. Intl L.J. 353 1997-1998 p. 3532 Karin Mickelson Rhetoric and Rage Third World Voices in International Legal Discourse 16 Wis. Intl L.J. 353 1997-1998. p. 3533 Patricia Buirette-Maurau, La Participation Du Tiers-Monde , A LElaboration Du Droit International (1983)199-2024 Richard Falk, Preface to B.S. Chimni, International Law and World couch A Critique of Contemporary Approaches 9, (1993). p.95Richard Falk, Preface to B.S. Chimni, International Law and World Order A Critique of Contemporary Approaches 9, (1993) p.96 Richard Falk, Preface to B.S. Chimni, International Law and World Order A Critique of Contemporary Approaches 9, (1993) p.97 Richard Falk, Preface to B.S. Chimni, International Law and World Order A Critique of Contemporary Approaches 9, (1993) p198 Robert L. Rothstein, Limits and Possibilities of Weak Theory rendering North-South, 44 J. OF INTL AFFAIRS 159, (1990). p.1749 John D. Haskell, TRAIL-ing TWAIL Arguments and machination vagrant in Third WorldApproaches to International Law (Mississippi College School of Law Legal Studies Research reputation No. 7/2014, 2014) pg.18.10 Antonius R Hippolyte Correcting TWAILS Blind Spots A supplication for a matter-of-fact Approach to International Economic Governance.p.1511 C. Fred Bergsten Competitive repose and Global Free Trade A Vision for the Early twenty-first Century (Peterson Institute Institute for International Economics. Working Paper 15/1996, 1996)12 KORUS trade was an agreement be tween South Korea and US. NAFTA was a trade agreement between Mexico and North America.13 Antonius R Hippolyte Correcting TWAILS Blind Spots A excuse for a Pragmatic Approach to International Economic Governance.p.1614 Antonius R Hippolyte Correcting TWAILS Blind Spots A Plea for a Pragmatic Approach to International Economic Governance.p.1615 Antonius R Hippolyte Correcting TWAILS Blind Spots A Plea for a Pragmatic Approach to International Economic Governance.p.1616 2012 ICSID Case No.ARB/06/11 at paras 824-25.17 R Rajesh Babu, International Commercial Arbitration and the Developing Countries (2006) 4 AALCO every quarter Bulletin 386, 398.18 Antonius R Hippolyte Correcting TWAILS Blind Spots A Plea for a Pragmatic Approach to International Economic Governance.p.1819 Antony Anghie, fourth dimension Present and Time Past Globalization, International Financial Institutions and the Third World. p.25620Antonius R Hippolyte Correcting TWAILS Blind Spots A Plea for a Pragmatic Approach to International Economic Governance.p.1821 Antonius R Hippolyte Correcting TWAILS Blind Spots A Plea for a Pragmatic Approach to International Economic Governance.p.1822 Karin Mickelson, Rhetoric and Rage Third World Voices in International Legal Discourse (1998) 16 Wis. Intl L.J.