CReDItIs · Critique and Reformation of Doctrine in International Investment Law: Legal Theory and Empirical Legal Studies

The protection of international investments by international agreements such as the Transatlantic Trade and InvestmentPartnership and its enforcement by Investor-State Dispute Settlement is currently subject of an important political debate.That debate pits the goal of attracting and protecting international investments against that of avoiding the exploitation ofhost countries and undermining their domestic law. CReDItIs will develop a new theoretical foundation for internationalinvestment law, putting particular emphasis on systematic and theoretical rigour and using expropriation as a case-study. Itchallenges the dominant stance of legal scholarship by using both legal theory and legal-empirical research. For orthodoxscholars, the law in international treaties is authoritatively defined by what 'authorities' have said. Ad hoc investmenttribunals adjudicate on investment disputes on the basis of mostly bilateral investment agreements. These awards do nothave formal precedential value, and the agreements they rely upon are similar, but not identical. Yet not only are awards ofgreat factual importance, legal scholarship believes that they can somehow be applied even to treaties on which they do notadjudicate. In contrast, for legal-realist empiricism, the law is what the courts decide. CReDItIs will contrast these views withthe Pure Theory of Law, which is a legal theory arguing that seeing law as norms is possible without admixing it with nonlegalnorms, or reducing law to facts. It will highlight the factual importance of awards and treaties through the use ofempirical tools such as citation network analysis while distinguishing this from false designs to unify and concretise theseresults as law. The law remains fragmented; the law remains unspecific, even if and when judicial pronouncements andtreaties are similarly worded.