Barcelona Traction Re-Imagined

Abstract

At a time where the future of investment law is often reinvented, this exercise of juris-fiction aims at exploring the relationship between the Barcelona Traction judgment and the course of foreign investment law to determine whether there was room for another evolution. Relying on a theoretical approach that combines normativism with legal realism in an original way, the study looks at different turning points in the course of foreign investment law in order to isolate those which appear as contingent, ie those which could have happened as they could have not happened. Such an enquiry leads to assessing the relative weight that the Barcelona Traction case has played in the remarkable expansion of investor-state dispute settlement. After a short introduction, section II introduces the methodology and used concepts. Section III looks at a few events in the history of foreign investment law in order to distinguish what was contingent and what was unavoidable while, at the same time, identifying what could be turning points. After having set the attention on the Barcelona Traction judgment as a contingent turning point among others, section IV further assesses the causality link between the judgment and foreign investment law through an exercise of imagination in which are considered not only the possible but also the likely effects of a different outcome to the case. By way of conclusion, section V suggests that the Barcelona Traction judgment itself, rather than foreign investment law, was, however, so tightly constrained that it could hardly have been different. It however highlights that the same cannot be said of the Diallo judgment, thus showing that contingency is often related to legal indeterminacy.