Philip Burton
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Constructing the Calvo Doctrine
Claims to universality and charges of particularism
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Chapter 1 provides a constructivist history of the great debate surrounding the Calvo doctrine, tracing the ways that jurists and diplomats invoked and attacked Calvo, and the ways participants sought to clothe their preferences in the language of universalism, while seeking to expose the particularist predilections of their rivals. This focus on the “historiographical Calvo,” as opposed to the “historical Calvo,” provides insight into the rhetorical strategies of the protagonists and antagonists of reformist projects in international law. This analysis of the “great debate” regarding the level of protection international law ought to offer foreign investors is structured by the transition between different institutional fora. Starting in 1889, the analysis begins with the first Pan-American Conference and concludes in 1965 with conclusion of the Convention establishing the International Centre for the Settlement of Investment Disputes. Unlike conventional accounts of the historical antecedents of what is, today, referred to as “international investment law,” Chapter 1 decenters the arbitral tribunal – the paradigmatic institution of modern investment law – from its ascribed place as the locus of legal development. Despite the indisputable importance of arbitral decisions, this chapter argues that the basic structure of arbitral dispute resolution predisposes historical accounts towards a depiction of Latin American “resistance” as a rear-guard action; ad-hoc, disaggregated, and reactive. Focusing on the advocacy of reform projects through collective institutional forums not only facilitates a more coherent history of those projects but offers greater utility in the context of the present volume on the contemporary prospects of Latin American resistance and accommodation.

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