Sovereign wealth funds and the existing structure of the regulation of investments

Abstract

The strategic investments made by SWFs in vital economic sectors of the developed states have caused national security concerns. The existing law on foreign investment, which was designed by the developed states to permit liberal flows of foreign investment and emphasize protection against government interference, sits uneasily with recent moves to control SWF investments. The developed states may have to dismantle to a significant extent the international law they had created to protect foreign investment and retreat into principles of sovereignty earlier advocated by the developing states. This will result in dramatic changes to customary law as well as treaty norms and significantly undermine the present structure of investment protection: A complete reversal of the neoliberal vision may occur. This phenomenon provides an opportunity for the examination of how events that lead to the quick making of legal rules in line with a legal theory favoured in a particular political context are, equally quickly, replaced by another set of rules to suit rapid changes in the power balances.