Should We All Get Accustomed to It? The Ecuadorian Experience and Position Concerning Foreign Investment Protection Under International Law

Abstract

The article takes on the issue of how the mainstream legal discourse on investment protection can highlight certain elements of reality and obscure others. Specifically, the article puts into question the hegemonic assertion that customary international law has emerged from a general state practice, consistent on the signature and ratification of international investment agreements. Unlike those who hold that the said practice is the result of opinio juris, or a strategic economic choice, the author uses the Ecuadorian example to attempt a third explanation: Such practice responds to economic necessity, not always related to the perceived direct benefits of the particular agreements. Furthermore, the article holds that there are signs that show a recent shift in the general state practice.