Originally from EU Law and International Investment Arbitration - IAI Series No. 11

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I. INTRODUCTION

The law is a way of doing things.   Different laws do things in different ways.  Different fields of law, different systems of law, and different legal orders do things in different ways.  Unsurprisingly, different fields of public international law do things with foreign investment in different ways.  International law of foreign investment provides primary rules for the protection of foreign investment and procedural (tertiary) rules of investor-State dispute settlement through which investors may invoke and implement (secondary rules) of State responsibility for injury to investment.  But that is not the only way of dealing with foreign investment.  International human rights law may protect foreign investment directly, if it falls within the personal and substantive scope of the rules, but will articulate protection as related to protection of individual rights, rather than objects (investments).   International tax law addresses one particular aspect of transnational business activities, and may provide important incentives for structuring decisions of foreign investment.   International law of the sea delineates rights of States to authorise foreign investment (but without giving direct procedural rights to investors).   Yet other fields of international law, like international environmental law and international humanitarian law, will address foreign investment in different ways.  It may be a rather trite point but still bears noting as a backdrop for further discussion: it is natural and unsurprising that different laws have different ways of doing things in relation to the same issue, both in terms of grand questions of policy and teleology and smaller points of institutional choices and drafting technique.