The Once and Future Foreign Investment Regime
Files
Description
The McDougal-Lasswell-Reisman approach to international law, otherwise known as the “Yale” or “New Haven” School, is a powerful tool for dissecting how international legal regimes originate and evolve over time. As far back as 1959, Myres McDougal and Harold Lasswell argued for a new form of jurisprudence that was built upon, but went beyond, the insights of American legal realism. Their new “constructive jurisprudence of problem-solving” was situated in a larger context of world social events and processes, was attentive to the strategies of powerful actors (including groups and individuals and not merely the governments of states), paid heed to varied legal decision-making processes, and sought to clarify how international legal regimes fit within a system of public order that contributes to human dignity. This “policyoriented” approach stressed that international law could not be insulated from international politics and required an interdisciplinary analysis capable of going beyond strict positivism to consider the goals, aspirations, and the conduct of all the diverse participants in the international legal process. Although New Haven scholars acknowledged that nation states continued to be the predominant actors in the “global constitutive process of authoritative decision,” they anticipated today’s international relations scholars of the “liberal school” in acknowledging the impact of numerous non-state actors both internal to and outside the state; they anticipated the “democratization” of international law. McDougal, Lasswell, and Reisman also emphasized whether emerging legal prescriptions would actually advance the eight values that they argued produced “security.” As their broad concept of security suggests, the New Haven school did not examine only decisions bearing on so-called “high” politics, such as military security. Years before numerous global financial crises made the reality of economic interdependence obvious to all, McDougal and his colleagues noted that a “breakdown of any sector of [the] global economy is felt everywhere else.” Decades before globalization became a truism, they anticipated how the international flow of goods and services would make all nations dependent on the “resources, skill, labor, goods and markets” of others. This essay reexamines the rise and evolution of the contemporary international legal regime governing international investment in light of the insights of the New Haven school. In doing so, this essay critiques a leading game theoretic account of that regime, going beyond it to describe a regime that continues to evolve with the needs of its principle stakeholders.
Source Publication
Looking to the Future: Essays on International Law in Honor of W. Michael Reisman
Source Editors/Authors
Mahnoush H. Arsanjani, Jacob Cogan, Robert Sloane, Siegfried Wiessner
Publication Date
2011
Recommended Citation
Alvarez, José E., "The Once and Future Foreign Investment Regime" (2011). Faculty Chapters. 71.
https://gretchen.law.nyu.edu/fac-chapt/71
