Sovereignty and tragedy in contemporary critiques of investor state dispute settlement

Investor-state dispute settlement (ISDS), which makes it possible for foreign investors to sue host states in arbitral tribunals, has been at the centre of recent mobilisations against claimed trade injustices. Critics tend to identify ISDS as epitomising neoliberalism or neo-imperialism in international law, or as a hybrid of these two. My intention in this essay is not to undermine such critiques but rather to examine the work that the concept of sovereignty does within them and to consider the possible tragic quality of proposals that point towards political action focused on reclaiming sovereignty. I argue that, when critiques of ISDS are couched in terms of sovereignty lost by states to corporations, critics find themselves implicitly working with ‘two types of sovereign power: a “bad”, dominative type…and a “good” emancipatory type’. When corporate sovereignty is depicted as a ‘bad’ dominative type, it is often implied that, if returned to states (or communities) sovereignty would function as the ‘good’, emancipatory type. And yet, as Joan Cocks observes, struggles for freedom through sovereignty can be dangerous, frequently recreating the injuries they seek to escape. But we can go further and ask not only about the salience of the concept of sovereignty for critiques of ISDS and international investment law, but also about the temporal mismatch between critiques that appear to respond to historical, anti-colonial concerns about sovereignty, and the coordinates of our own contemporary problem-space.