A TWAIL Engagement with Customary International Investment Law: Some Strategies for Interpretation

This chapter focuses on some of the Third World Approaches to International Law (TWAIL)s criticism of investment law and the CIL rules contained therein, and proposes an engagement with this criticism at the stage of interpretation. Based on an examination of the interpretation of the customary minimum standard of treatment, it argues that interpretation plays two roles in relation to CIL – a constructive and an evolutive role. In light of these two roles, interpretative arguments may be deployed strategically so as to flag problematic rationales in the rules and argue for their re-interpretation. In particular, I propose three interpretive strategies which may achieve this goal, which are differentially suited to the different actors who may wish to deploy them. These strategies are limited by the actors who deploy them, the forum where they are deployed, as well as the rules of procedure in which the dispute takes place. Nevertheless, they present an opportunity for a constructive TWAIL engagement with international investment law which does not summarily dismiss the existing system.