Legalizing international investment law

This chapter explores the avenues to legalize international investment law. Based on the constructivist framework, it first points out three core processes of law-making, namely the practice of norms which generate shared understandings, the institutionalization of norms and the application of norms to legal practice. International investment law can be legalized through all three processes. Particularly with regard to the second process (the institutionalization of norms), this chapter argues that, given the lack of shared understandings within the community of practice, flexibility and plurality should be the dominant principles guiding the reform of the regime; pursuing predictability with methods of radical institutionalization will cause the problem of ‘over-institutionalization’, exemplified by further dissatisfaction and backlashes against the regime. To elaborate on the argument, this chapter engages in case study of three international regimes, namely international trade law, the European Court of Human Rights and international taxation.