From Business Plans to International Rights
成果类型：
Article
署名作者：
Larkin, Andrew
署名单位：
New York University
刊物名称：
HARVARD INTERNATIONAL LAW JOURNAL
ISSN/ISSBN：
0017-8063; 2153-2494
发表日期：
2026
关键词：
摘要：
Multinational businesses have used a highly enforceable, specialized treaty regime to turn their plans into international rights that trump national laws. Through the investment regime, businesses have acquired substantial latitude to make decisions about the public impacts of their projects, including on sensitive issues of environmental protection, Indigenous Peoples' rights, and national development strategies, even when those decisions conflict with the law of the state in which they are operating. That reality is at odds with the standard, black-letter law account of the investment regime as playing a neutral role, protecting property rights defined by national law. It also provides a different framework for critical engagement with the field. Against a raft of scholarship arguing that investment law is inconsistent and incoherent, this Article argues that a clear line of cases follows discernible logic organized around protecting private profit expectations. That account has implications for an ongoing conversation about how to reform the governance of international investment. An account of why investment treaties protect private plans suggests that any specialized regime dedicated exclusively to protecting international capital will be pushed towards similar results. As a result, this account suggests that abolishing a specialized, single-purpose regime for protecting foreign investment, not institutionalizing it through a court, or domesticating it through national administration, is the way to avoid putting business plans above national law.