- Giambattista Vico, The New Science of Giambattista Vicoi, Thomas Goddard Bergin and Max Harold Fisch (trans) (Cornell University Press, rev 3rd edn 1984 [1744]) II.122.
- John M Hobson, The Eurocentric Conception of World Politics: Western International Theory, 1760–1820 (Cambridge University Press, 2012) 33; Raymond Williams, Keywords: A Vocabulary of Culture and Society (Fontana, 1983) 59.
- Williams (n 2) 57.
- David Armitage, The Ideological Origins of the British Empire (Cambridge University Press, 2000) 56.
- Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge University Press, 2001) 102.
- Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2004) 5.
- See Koskenniemi (n 5) 103. Cox associates it with a Gramscian ‘common sense’, though he could just as likely be channelling Vico ('Common sense is judgment without refection, shared by an entire class, and entire people, an entire nation, or the entire human race' in Vico (n 1) XII, 142). See Robert W Cox and Michael G Schechter, The Political Economy of the Plural World: Critical Reflections on Power, Morals and Civilisation (Routledge, 2002) 176.
- Gong offers a definition of the standards which are not very exacting. He describes these as ‘basic rights, ie life, dignity, and property, freedom of travel, commerce, and religion, especially that of foreign nationals'. Gong admits that these basic rights and ‘what constituted their guarantee were never well defined’. See Gerrit W Gong, The Standard of ‘Civilisation’ in International Society (Clarendon Press, 1984) 14–15.
- Elihu Root, ‘The Basis of Protection to Citizens Residing Abroad' (1910) 7 Proceedings of the American Society of International Law 16, 22. Dolzer and Schreuer refer to this as representing the ‘dominant position’ in international law. Calvo's competing formulation, discussed further below, they designate as ‘marginal’. See Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (Oxford University Press, 2008) 12.
- See Koskenniemi (n 5) 52, 57.
- See Gong (n 8) 8–71.
- Paparinskis describes Elihu Root's discussion of the source of the international minimum standard as ‘ambiguous’ and ‘vague’, and states that he did not ‘detail its content in any but the most general terms': Martins Paparinskis, The International Minimum Standard and Fair and Equitable Treatment (Oxford University Press, 2013) 39, 43–44.
- See Williams (n 2) 59. This might explain the subtitle to Sydney and Beatrice Webb's Soviet Communism: A New Civilisation? (Longmans Green & Co, 1935).
- See Gong (n 8) 7.
- Namely, that which is grounded in the in the law of diplomatic protection. See eg Edwin Borchard, The Diplomatic Protection of Citizens Abroad or the Law of International Claims (Banks Law Publishing Co, 1919). I take issue, however, with interpretations that link contemporary standards to 18th-century diplomatic initiatives like the Jay Treaty. Compare David Schneiderman, ‘Constitution or Model Treaty? Struggling over the Interpretive Authority of NAFTA' in Sujit Choudhry (ed), The Migration of Constitutional Ideas (Cambridge University Press, 2006) 308–11 with Barton Legum, ‘Federalism, NAFTA Chapter Eleven and the Jay Treaty of 1794' (2001) 18(1) ICSID News (Spring) 11.
- Gerald E Frug and David J Barron, ‘International Local Government Law' (2006) 38 The Urban Lawyer 1.
- Ha-Joon Chang, ‘Regulation of Foreign Investment in Historical Perspective' (2004) 16(3) European Journal of Development Research 687; David Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy's Promise (Cambridge University Press, 2008) 135–58.
- There is a modestly sized literature which seems, at this conjuncture, to have reached an impasse. See Jason W Yackee, ‘Do Bilateral Investment Treaties Promote Foreign Direct Investment? Some Hints from Alter native Evidence' (2011) 51 Virginia Journal of International Law 397; Jason W Yackee, ‘Bilateral Investment Treaties, Credible Commitment, and the Rule of (International) Law: Do BITs Promote Foreign Direct Investment?' (2008) 42 Law & Society Review 805;United Nations Conference on Trade and Development (UNCTAD), The Role of International Investment Agreements in Attracting Foreign Direct Investment to Developing Countries (United Nations, 2009) 55. For discussion, see Schneiderman (n 17) 17–42.
- See Hobson (n 2) 18; also Pierre Bourdieu, Pascalian Meditations, Richard Nice (trans) (Stanford University Press, 2000) 71.
- Using Hobson's taxonomy, contemporary investment lawyers might be characterised as ‘subliminal paternalist formal liberal imperialists’ (a composite derived from Hobson (n 2) 187, 220).
- Boaventura de Sousa Santos, ‘Beyond Abyssal Thinking: From Global Lines to Ecologies of Knowledges' (2007) 30(1) Review 53.
- See Dolzer and Schreuer (n 9) 16.
- Linda Weiss, The Myth of the Powerless State (Cornell University Press, 1998); United Nations Conference on Trade and Development (UNCTAD), ‘Towards a New Trade Policy for Development' (1964) UN Doc E/CONF.4b/141 (prepared by Raúl Prebisch) 7.
- Vadi appreciates the fact but understates its depth when she acknowledges that ‘methodology issues have been neglected’ in international investment law. see Valentina Vadi, ‘Critical Comparison: The Role of Comparative Law in Investment Treaty Arbitration' (2010) 39 Denver Journal of International Law and Policy 67.
- Ran Hirschl, ‘On the Blurred Methodological Matrix of Comparative Constitutional Law' in Choudhry (n 15) 45.
- Michel Foucault, ‘Two Lectures' in Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972-77, Colin Gordon (ed) (Pantheon, 1980) 93; Michel Foucault, Abnormal: Lectures at the Collège de France 1974-75, Graham Burchell (trans) (Picador, 2003) 52.
- Günter Frankenberg, ‘Critical Comparisons: Re-Thinking Comparative Law' (1985) 26 Harvard International Law Journal 411, 421.
- Vadi warns that adopting a functionalist approach to comparison in the investment law context ‘reduces the law to a formal technique of conflict resolution denying its political underpinnings'. See Vadi (n 24) 97.
- For example, what role, if any, should the national jurisprudence of the BRICS countries play in the formulation of general principles? Investment law scholars cannot begin to attend to this question until they become aware of the comparative choices they make.
- Peter Fitzpatrick, The Mythology of Modern Law (Routledge, 1992) 80.
- See Root (n 9).
- Ibid, 17.
- Ibid, 19.
- Ibid, 25.
- The precise formulation in Neer: ‘the treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith, to willful neglect of duty, or to an insuffciency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency'. Neer v United Mexican States (1926) in Mexico-USA General Claims Commission, Reports of International Arbitral Awards (United Nations, 2006) 61–62.
- See Borchard (n 15); Edwin Borchard, ‘The “Minimum Standard” of the Treatment of Aliens' (1939) 33 American Society of International Law Proceedings 51.
- See Borchard, ‘The “Minimum Standard” of the Treatment of Aliens' (n 36) 61.
- Ibid, 56.
- Sornarajah admits that there are three instances arising out of the old cases where the minimum standard of justice will arise, having to do with physical security, denial of justice and compensation, though there will have emerged no consensus on the manner in which compensation would be calculated. See M Sornarajah, The International Law on Foreign Investment (Cambridge University Press, 2010) 346, 82.
- Cordell Hull, ‘Mexico-United States: Expropriations by Mexico of Agrarian Properties Owned by American Citizens' (1938) 32(4) American Journal of International Law (Supp) 181.
- Carlos M Calvo, Le Droit international théorique et pratique (Guillaumin, 1880). For a translation of part of Calvo's treatise see Edward M Gallaudet, A Manual of International Law (H Holt, 1879).
- Donald R Shea, The Calvo Clause: A Problem of Inter-American and International Law and Diplomacy (University of Minnesota Press, 1955).
- Manuel R Garcia-Mora, ‘The Calvo Clause in Latin American Constitutions and International Law' (1950) 33 Marquette Law Review 205, 206.
- Gloria Sandrino, ‘The NAFTA Investment Chapter and Foreign Direct Investment in Mexico: A Third World Perspective' (1994) 27 Vanderbilt Journal of Transnational Law 259, 268; The Calvo clause-requiring resort to local courts for the resolution of contractual disputes-remains a constituent element of a distinctive Latin American approach to international law. See John Dugard, Third Report on Diplomatic Protection (2002) International Law Commission 54th Session, UN DocA/CN.4/523/Add.1, 15 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N02/276/03/PDF/N0227603.pdf?OpenElement.
- Dugard, ibid, 14.
- In which case, it is incorrect to claim, as do Dolzer and Schreuer, that Calvo's doctrine resulted in a ‘com plete lack of protection’ for alien investors. See Dolzer and Schreuer (n 9) 12; also Horacio Grigera Naón, ‘Arbitration and Latin America: Progress and Setbacks' (2005) 21(2) Arbitration International 127, 137.
- See Cox and Schechter (n 7) 165.
- Liliana Obregón, ‘Between Civilisation and Barbarism: Creole Interventions in International Law' (2006) 27 Third World Quarterly 815, 817.
- The most important contemporary work on Alvarez can be found in the special issue (2006) 19(4) Leiden Journal of International Law.
- Liliana Obregón, ‘Carlos Calvo's Theoretical and Practical International Law', D Phil thesis, unpublished chapter ‘Completing Civilisation: Creole Interventions in International Law', Harvard Law School, 2002 (manuscript on file with author).
- Alejandro Alvarez, ‘Latin America and International Law' (1909) 3 American Journal of International Law 269.
- Ibid, 269.
- Alejandro Alvarez, ‘The Agrarian Reform: The Hungarian-Roumanian Controversy before the Council of the League of Nations' in Agrarian Reform in Roumania and the Case of the Hungarian Optants in Transylvania before the League of Nations (Imprimerie du Palais, 1927) 41–57, 49. For this reason, Borchard could cite Alvarez as being in support of an international minimum standard of treatment that represents civilised justice (see Borchard (n 15) 60 fn 16).
- See Koskenniemi (n 5) 303.
- See Obregón (n 48) 816.
- Léon Duguit, ‘The Roumanian-Hungarian Dispute and the Council of the League of Nations' (1927) in Agrarian Reform (n 53) 105–32, 106, 109, reprint of ‘Le Différend roumano-hongrais et le conseil de la Société des Nations' (1927) 54(4–5) Revue de Droit International et de Legislation Comparée 469.
- Ibid, 131; also Léon Duguit, ‘Changes of Principle in the Field of Liberty, Contract, Liability, and Property' in [various authors], The Progress of Continental Law in the Nineteenth Century (Little, Brown, 1918) 136.
- John Bassett Moore, Letter from Moore to Borchard dated 26 April 1915 in John Bassett Moore Papers, Library of Congress, Box 29, file ‘General Correspondence 1915'. See, further, David Schneiderman, ‘Invest ing in Democracy? Political Process and International Investment Law' (2010) 60 University of Toronto Law Journal 909, 922–3.
- Sir John Fischer Williams, ‘International Law and the Property of Aliens' (1928) 9 British Yearbook of International Law 1, 24; Payton S Wild, Jr, ‘International Law and Mexican Oil' (1939) 1 Quarterly Journal of Inter-American Relations 5, 15. On the police power in US constitutional law, see David A Dana and Thomas W Merrill, Property: Takings (Foundation Press, 2002) 52–57. See discussion in text at n 77.
- Morris R Cohen, ‘Property and Sovereignty' (1927) in MR Cohen, Law and Social Order: Essays in Legal Philosophy (Transaction, 1982) 41–68, 60.
- Karl Strupp, ‘The Roumano-Hungarian Dispute concerning the Hungarian Optants in Roumania Terrritory'(1927) in Agrarian Reform (n 53) 289–99, 300.
- Otto Kirchheimer, ‘The Limits of Expropriation' in Keith Tribe (ed), Social Democracy and the Rule of Law: Otto Kirchheimer and Franz Neumann (Allen & Unwin, 1930) 109ff.
- Frederick Sherwood Dunn, ‘International Law and Private Property Rights' (1928) 28 Columbia Law Review 166, 175.
- Ibid, 176.
- Ibid, 176.
- See Williams (n 59) 21.
- See Wild (n 59) 20.
- See Isaiah Berlin, ‘Alleged Relativism in Eighteenth-Century Political Thought' in Isaiah Berlin and Henry Hardy (eds), The Crooked Timber of Humanity: Chapters in the History of Ideas (Alfred A Knopf, 1991) 70–90. See also Vico (n 1); JG Herder, ‘Yet Another Philosophy of History for the Enlightenment of Mankind: A Further Contribution to the Many Contributions of the Century' (1774) in FM Barnard (ed and trans), JG Herder on Social and Political Culture (Cambridge University Press, 1969) 181–223.
- Isaiah Berlin, Vico and Herder: Two Studies in the History of Ideas (Hogarth Press, 1976) xxiii. As Dana and Merrill (n 59 at 57) admit, takings theory in the US is ‘ultimately about political theory-specifcally, about how much faith one has in government'.
- See Gong (n 8) 84.
- See Dolzer and Schreuer (n 9) 16.
- United Nations Conference on Trade and Development (UNCTAD), World Investment Report 2013: Global Value Chains-Investment and Trade for Development (United Nations, 2013) 101.
- See Schneiderman (n 17).
- Upendra Baxi, The Future of Human Rights (Oxford University Press, 2006).
- Stephen Gill, Power and Resistance in the New World Order (Palgrave Macmillan, 2008) 139, 142.
- Ibid, 124, 135.
- Regulatory takings are contrasted with exercises of the state's police powers which are focused on promoting safety, health, morals or the general welfare. See Dana and Merrill (n 59).
- Penn Central Transportation Co v New York City, 438 US 104 (1977).
- Whatever the precise origins of, for instance, investment law's takings rule, it turns out that it in practice imposes harsher restraints than even capital-exporting constitutional systems would permit. See Vicki Been and Joel C Beauvais, ‘The Global Fifth Amendment? NAFTA's Investment Protections and the Misguided Quest for an International “Regulatory Takings” Doctrine' (2003) 78 New York University Law Review 30;also David Schneiderman, Resisting Economic Globalization: Critical Theory and Investment Law (Palgrave Macmillan, 2013) 80–83.
- See Wild (n 59) 10.
- Sir John Fischer Williams, ‘International Law and the Property of Aliens' (1928) 9 British Yearbook of International Law 1, 24.
- José E Alvarez and Tegan Brink, ‘Revisiting the Necessity Defense: Continental Casualty v Argentina' in Karl P Sauvant (ed), Yearbook on International Investment Law and Policy 2010–2011 (Oxford University Press, 2012) 348.
- See Schneiderman (n 79) 79–80.
- Parvan P Parvanov and Mark Kantor, ‘Comparing US Law and Recent US Investment Agreements: Much More Similar Than You Might Expect' in Yearbook on International Investment Law & Policy 2010–2011 (n 82); Gary H Sampliner, ‘Arbitration of Expropriation Cases under US Investment Treaties-A Threat to Democracy or the Dog that Didn't Bark?' (2003) 18 ICSID Review-Foreign Investment Law Journal 1.
- See Dolzer and Schreuer (n 9) 16.
- José E Alvarez, ‘The Once and Future Foreign Investment Regime' in MH Arsanjani, JK Cogan, RD Sloane and S Wiessner (eds), Looking to the Future: Essays on International Law in Honour of W Michael Reisman (Martinus Nijhoff, 2010) 634.
- Ibid, 626.
- Lauge Skvorgaard Poulsen, ‘Learning about BITs' (2010) (unpublished manuscript on file with author).
- Ibid.
- South Africa, Department of Trade and Industry, ‘Bilateral Investment Treaty Policy Framework Review: Government Position Paper' (June 2009), www.pmg.org.za/files/docs/090626trade-bi-lateralpolicy.pdf.
- Xavier Carim, ‘Lessons from South Africa's BITs Review', Columbia FDI Perspectives No 109 (25 November 2013), www.vcc.columbia.edu/content/lessons-south-africa-s-bits-review; Rob Davies (Minister of Trade and Industry, South Africa), ‘Investment Policy Framework Speech’ (26 July 2012), http://unctad.org/meetings/en/Miscellaneous%20Documents/South-Africa-Investment-statement_Rob_Davies.pdf.
- Department of Foreign Affairs and Trade, Australia, ‘Gillard Government Trade Policy Statement: Trading our Way to More Jobs and Prosperity' (14 April 2011), www.acci.asn.au/getattachment/b9d3cfae-fc0c-4c2a-a3df-3f58228daf6d/Gillard-Government-Trade-Policy-Statement.aspx.
- Ibid. Australian policy may change with the election in 2013 of a new Liberal-National coalition government.
- Daniel Hurst, ‘Australia Finalises Free Trade Agreement with South Korea' The Guardian, 5 December 2013, www.theguardian.com/world/2013/dec/05/australia-fnalises-free-trade-agreement-south-korea.
- Jason Webb Yackee, ‘Controlling the International Investment Law Agency' (2012) 53 Harvard Journal of International Law 391, 411.
- Aguas del Tunari, SA v Republic of Bolivia, Decision on Respondent's Objections to Jurisdiction (2005), ICSID Case No ARB/03/3 (21 October) in (2006) 18 World Trade and Arbitration Materials 271.
- Gus Van Harten, ‘Arbitrator Behaviour in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration' (2012) 50 Osgoode Hall Law Journal 211, 233–4. Susan Franck, who has undertaken empirical work on investment law case outcomes, has not produced evidence that contradicts Harten's particular finding on jurisdiction based on content analysis of 140 decisions on jurisdiction. See Susan D Franck, ‘Development and Outcomes of Investment Treaty Arbitration' (2009) 50 Harvard Journal of International Law 435. There are also reasons to be cautious about relying on a conclusion, based on a sample of 52 cases, that the investment arbitration system ‘functions fairly’ and that outcomes bear no relationship to the developmental status of arbitrators or respondents (Franck, 435, 487). For a debate bearing on the reliability of Franck's findings, see Gus Van Harten, ‘The Use of Quantitative Methods to Examine Possible Bias in Investment Arbitration' in Yearbook on International Investment Law & Policy 2010–2011 (n 82); Susan D Franck, Calvin P Garbin and Jenna M Perkins, ‘Response: Through the Looking Glass-Understanding Social Science Norms for Analyzing International Investment Law' in Yearbook on International Investment Law & Policy 2010–2011 (n 82).
- José E Alvarez, ‘Contemporary Foreign Investment Law: An “Empire of Law” or the “Law of Empire”?' (2009) 60 Alabama Law Review 943.
- Ha-Joon Chang, Kicking Away the Ladder: Development Strategy in Historical Perspective (Anthem Press, 2002).
- See Weiss (n 23).
- See Foucault, ‘Two Lectures' (n 26) 78–108, 82, 86.
- Alice H Amsden, Escape from Empire: The Developing World's Journey through Heaven and Hell (MIT Press, 2007) 37; see UNCTAD (n 23).
- See Alvarez (n 98).
- There is mention, however, of a clash of ‘civilisations’ between the US and European arbitration styles, resulting in the ‘evolution of a sui generis civilisation that is combining elements of many pre-existing practices to create new norms'. See Andrea K Bjorklund, ‘The Emerging Civilisation of Investment Arbitration' (2009) 113 Penn State Law Review 1269, 1270.
- Gong points, for instance, to the standards promoted by the Uruguay-Round GATT institutionalised in the WTO as now being ‘virtually accepted’ and so generally a part of international law, a highly contestable proposition. Compare Gerrit W Gong, ‘Standards of Civilisation Today' in Mehdi Mozaffari (ed), Global ization and Civilisations (Routledge, 2002) 86 with Hobson (n 2) 221.
- Karen Knop, ‘Reflections on Thomas Franck, Race and Nationalism (1960): “General Principles of Law” and Situated Generality' (2003) 35 New York University Journal of International Law and Politics 437, 456.
- See Anghie (n 6) 111.
- Rudolf Dolzer, ‘Indirect Expropriation of Alien Property' (1986) 1 ICSID Review-Foreign Investment Law Journal 41, 43.
- Ibid, 55, 59.
- Ibid, 60.
- Ibid, 62.
- Ibid, 62.
- Rudolf Dolzer, ‘Indirect Expropriations: New Developments?' (2002) 11 New York University Environmental Law Journal 64, 77. This also appears to be the motivating feature of Mountt's purported ‘updating’ of the Calvo doctrine: that investment treaty standards coalesce around those judicially enforced within developed states and expand no greater than domestic norms (see Santiago Montt, State Liability in Investment Treaty Arbitration: Global Constitutional and Administrative Law in the BIT Generation (Hart Publishing, 2009) 81). These standards, Montt maintains, can then reasonably be extended to nationals within host states, as a way of avoiding problems associated with factionalism in the production of domestic law (Montt, 374).
- Stephan W Schill, ‘International Investment Law and Comparative Public Law-An Introduction' in Stephan W Schill (ed), International Investment Law and Comparative Public Law (Oxford University Press, 2010).
- Ibid, 16.
- Schill enumerates the benefts of having recourse to comparative public law, which include: bringing in non-investment considerations, ensuring cross-regime consistency, generating law reform proposals, and legitimising the arbitral record (ibid, 25–26).
- Schill claims that general principles are used ‘frequently’ by international courts and tribunals (ibid, 27). McLachlan, by contrast, writes that the category of general principles is the ‘least well-understood’ and examples of the ICJ resorting to it are ‘rare’. See Campbell McLachlan, ‘Investment Treaties and General International Law' (2008) 57 International Comparative Law Quarterly 361, 396.
- Schill (n 114) 23.
- Ibid, 29 fn 99.
- Ibid, 29.
- Ibid.
- Ibid.
- Ibid, 29–30.
- Ibid, 25, 30.
- This appears to be borne out in the ensuing chapters of Schill's edited volume. The ‘Table of Cases’ is revealing as to the interest investment law scholars have in law outside of the global North. There are spotty references to regional human rights mechanisms: the Inter-American Court of Human Rights (referred to in chapters dealing with denial of justice and compensation for expropriation), and the African Commission on Human Rights (in a single chapter on legitimate expectations). Then there are occasional references to the law of Argentina (in a single chapter on legitimate expectations), Brazil (ditto), Colombia (ditto), and one reference to the South African death penalty case (State v Makwayane (1995) (3) SA 391 (CC)) in a chapter on proportionality. See Schill (n 114) xxxi-lv.
- See McLachlan (n 117) 381.
- International Law Commission, Report of the Study Group (2006) UN Doc A/CN.4/L682 Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (M Kos-kenniemi) (13 April) 254.
- Ibid.
- Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(C) of the Vienna Convention' (2005) 54 International and Comparative Law Quarterly 279.
- See McLachlan (n 117) 117–381.
- Ibid, 397.
- Ibid, 397.
- Steven R Ratner, ‘Regulatory Takings in Institutional Context: Beyond the Fear of Fragmented International Law' (2008) 102 American Journal of International Law 475, 483.
- See Penn Central(n 78).
- Ibid, 483.
- See Sampliner (n 84) 84–42.
- Luigi Ferrajoli, ‘Democracy and the Constitution in Italy' in Richard Bellamy and Dario Castiglione (eds), Constitutionalism in Transformation: European and Theoretical Perspectives (Blackwell, 1996).
- See Dolzer (n 108) 50. Dolzer makes mention of systems that constitutionalise the ‘social function of property’, though without further reference. Also Daniel Bonilla, ‘Liberalism and Property in Colombia: Property as a Right and Property as a Social Function' (2010) 80 Fordham Law Review 1135; MC Mirow, ‘Origins of the Social Function of Property in Chile' (2010) 80 Fordham Law Review 1183.
- David Schneiderman, ‘Promoting Equality, Black Economic Empowerment, and the Future of Investment Rules' (2009) 25 South African Journal on Human Rights 246. For the most recent jurisprudential statement, see Agri South Africa v Minister for Minerals and Energy 2013 (4) SA 1 (CC), where the Constitutional Court interpreted the South African constitutional property clause as mandating that ‘due regard [be had] to the gross inequality in relation to wealth and land distribution in this country' (per Mogoeng J at para 61).
- AJ Van der Walt, ‘Striving for the Better Interpretation: A Critical Refection on the Constitutional Court's Harksen and FNB Decisions on the Property Clause' (2004) 121 South African Law Journal 854.
- Consider, for example, the market-friendly outcomes of the Egyptian Supreme Constitutional Court during the Sadat and Mubarak regimes. For discussion, see Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics and Economic Development in Egypt (Cambridge University Press, 2007). Moustafa describes the court's strategy as being about lending a hand to the regimes' efforts at abandoning Nassarera socio-economic commitments (at 119).
- Boaventura de Sousa Santos, The Rise of the Global Left: The World Social Forum and Beyond (Zed Books, 2006) 15.
- See Dunn (n 63) 175.
- Norah Gallagher and Wenhua Shan, Chinese Investment Treaties: Policies and Practice (Oxford University Press, 2009) 39–43; Stephan W Schill, ‘Tearing Down the Great Wall: The New Generation Investment Treaties of the People's Republic of China' (2007) 15 Cardozo Journal of International and Comparative Law 73, 76.
- Despite this evidence, Cai believes that China ‘may [yet] play a key role in reshaping the investment treaty regime’: Conhyan Cai, ‘New Great Powers and International Law in the 21st Century' (2013) 24 European Journal of International Law 755, 792.
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