Guillaume François Larouche

Lawyers mobilize the concept of the rule of law to legitimize the way investment dispute settlement is or should be designed. For some, the investor-State dispute settlement (ISDS) regime based on international arbitration upholds the rule of law by “depoliticizing” investment disputes. For others, ISDS harms the rule of law by conveying a specific vision of international economic relations that is favourable to capital-exporting countries and their multinationals. They also question the independence of arbitrators and they argue that the ISDS regime failed to provide the necessary legal certainty that a regime based on the rule of law should uphold. Many among this latter group called for the reform of ISDS, currently being discussed under the aegis of the United Nations Commission on International Trade Law Working Group III on ISDS Reform (UNCITRAL WGIII). In this context, the European Union (EU) has engaged in diplomatic efforts to promote the establishment of a permanent investment court for the settlement of international investment disputes, the so-called Multilateral Investment Court (MIC), as an alternative to ISDS. The EU proposal draws inspiration from the European experience on the development of the rule of law through the Court of Justice of the EU, which has been described as the “international court par excellence.” This dissertation investigates the export process of the EU conception of the rule of law from the European legal field to the investment field. It aims to capture and document the influence of European lawyers on the conception of the rule of law that is actually exported through the EU proposal to establish the MIC. The European lawyers include the legal counsel of European institutions who are in charge of promoting the establishment of a permanent investment court as an alternative to ISDS. They also include legal scholars and experts, as well as private-practice investment arbitrators and lawyers based in Europe, who are interested in the work of the UNCITRAL WGIII. This dissertation mobilizes Pierre Bourdieu’s field theory to conceptualize the export process as a competition among European lawyers to influence the conception of the rule of law that is promoted as part of the EU proposal to establish the MIC. This dissertation postulates that while European lawyers belong to the European legal field and share a common knowledge of the European legal culture, they are not forming one epistemic community promoting the same conception of the rule of law in the context of the deliberations over the EU proposal to establish the MIC. Rather, this dissertation argues that European lawyers struggle to influence the EU export process of the rule of law with competing conceptions of the rule of law that are informed by their own interests, priorities, and analyses.