Berkeley Legal History Workshop Welcomes Felipe Ford Cole

Felipe Ford Cole joined Boston College Law as an Assistant Professor of Law in 2022. He studies how the law shapes the balance between sovereign power and the power conferred to private capital in local, national, and international contexts. As a comparative legal historian, Professor Cole’s research focuses on the historical evolution of this balance in the U.S. and Latin America.

Cole’s current research explores the evolution of public debt markets and the theory of sovereignty in the U.S. and Latin America and reexamines of the origins of the core doctrines of international investment law.

ABSTRACT

International investment law (IIL) is the vast assemblage of treaties, rules, and norms governing cross-border investments of capital averaging $1.2 trillion annually since 2010. For decades, IIL scholars and practitioners have insisted on the fundamental importance of the doctrine of the denial of justice on the development of IIL and its continued operation. In essence, the doctrine establishes a host state government’s responsibility for a miscarriage of justice committed by any of its branches against a foreign investor. But no such clarity is found in the accounts of the doctrine given by the scholars and practitioners convinced of its significance to IIL. In their rendition, the denial of justice is amorphous—taking on the form of a legal doctrine, a rationale, or event—and ambiguous—referring to a myriad of host state actions as denials of justice. This vagueness stems from the narrative’s omission of the clarifying historical context of the doctrine’s emergence as an instrument of imperial power, rather than an underlying opacity in the denial of justice itself. The denial of justice’s imbrication with empire does more than confound the doctrine’s meaning—it makes possible the triumphal metanarrative of IIL as the legal architecture for the peaceful settlement of interstate disputes over investment.
This Article revises the history of the denial of justice by reincorporating its creation in the jurisprudential workshop of empire. During the nineteenth and early twentieth centuries, imperial powers engaged in fierce competition for commercial supremacy in Latin America. The region was unique at the time in that it was comprised of a series of sovereign, postcolonial states in which a new empire was unlikely to establish rule. As such, commercial supremacy could not be achieved in the usual fashion of war and colonial occupation, but instead only by means of international law and diplomacy. U.S. and European jurists, drawn to the projects of inter-imperial competition by their close proximity to state power, were presented with the problem of protecting the investments of their fellow citizens in Latin American states. The fact of the sovereign equality of Latin American states stymied, at least initially, the jurists’ goal of enshrining a greater degree of protection for their citizen investors in Latin America than domestic law afforded. They found a possible solution in the denial of justice, a procedural element in the ancient and obscure law of reprisals which obligated a person requesting the aid of their sovereign against a foreign sovereign to show that they had been denied the opportunity to obtain justice for an underlying wrong committed by the foreign sovereign in their courts.
The imperial jurists turned to the emergent teachings of racial science, which held that orderly government and the administration of justice was the exclusive ability of Europeans to transform the denial of justice to their desired ends. The courts of the “semi-civilized,” mixed race states of Latin America were characterized as fundamentally incapable of applying the universal principles of law, which alone could adequately render justice for foreign investors from imperial states. The presumption then expanded to include every branch of an “uncivilized” or “semi-civilized” state’s government, said to be unable to protect any of the foreign investor’s rights. The denial of justice expanded correspondingly, no longer limited to a denial of process to a foreign investor seeking redress for an underlying wrong committed by the foreign government—the underlying wrong itself could be a denial of justice.
Once transformed, the denial of justice had a profound impact on what would become IIL. As one of the first substantive rights for foreign investors recognized in international law, the doctrine inspired claims to new substantive rights like the international minimum standard. By deprecating host state courts as incapable of rendering justice, the doctrine lent credence to arbitration, obviating its use to resolve investor claims. In so doing, the doctrine brought into the core of IIL a fundamentally unequal relation between host states in the global south and investors from imperial states in the global north, a relation that remains inadequately understood today as the neutral outcome of empowering investors generally to promote investment overall.

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