This chapter follows the Lena Goldfields Arbitration of 1930 and examines the legal practices deployed by the parties and the tribunal in their relation to the internationalisation of concession agreements. The tribunal was constituted after a dispute arose between a British company and the Soviet state over the fate of a concession agreement granted in 1925 concerning goldmines in Siberia, and it is the only international arbitration the Soviet Union ever participated in. The chapter takes as a starting point that the socialist revolution in the Soviet Union led to a fundamental change in the structure of the legal order, especially with regard to property rights. Instead of private individual ownership, Soviet law prescribed collectivised state ownership. The chapter argues that the tribunal elevated the jurisdiction over the Lena Goldfields concession agreement to the international level in order to override the application of socialist Soviet law. This elevation was achieved by relying on legal techniques concerning the competence of the arbitral tribunal and the applicable law to the concession agreement. While the Soviet Union maintained that the dispute was a matter of domestic jurisdiction, the company and the tribunal claimed the jurisdiction of an international legal order.

This chapter aims to show the role of oil concessions and arbitrations conducted on disputes arising from them for the internationalisation of contracts. The Sheikh of Abu Dhabi Arbitration between the British oil company Petroleum Development (Trucial Coast Ltd) and the Sheikh of Abu Dhabi of 1951 was one of the first of a number of arbitrations against oil-producing countries in the Middle East in the period after the Second World War and serves as a point of entry for this analysis. The argument this chapter advances is twofold. First, it aims to suggest that the construction of the international legal order over concession agreements shielded the economic sphere from sovereign assertions over production and resources and thereby maintained imperial patterns of domination in favour of Western states and their companies. Second, it argues that the driving force behind the making of this international legal order was the theory and practice of British international lawyers relying on notions of natural law, on creative argumentation and on repetition to establish the authority of the international legal order.

The 1959 Abs–Shawcross Draft Convention marks an important year in the early history of international investment law. Many accounts locate the origin of the field in 1959 with the ratification of the first bilateral investment treaty between Germany and Pakistan of the same year. This chapter aims at situating the Abs–Shawcross Draft Convention as a continuation, rather than a beginning, of the development of norms in the field of international investment law. The Draft Convention is one of the L10first to contain provisions that are recognisable to contemporary investment lawyers, but their content is an iteration of the older claims of the principles of acquired rights and the prohibition of unjust enrichment. The chapter demonstrates that the Abs–Shawcross Draft Convention brought the internationalisation of legal authority over concession agreements into formal shape.

This chapter engages with the Palestine Railway Arbitration of 1922 and draws out the techniques applied in the arbitration that framed new ways of protecting private property and laid the groundwork for the internationalisation of concession agreements. The chapter describes how introduction of the Mandate System and the inclusion of concession agreements into peace treaties (under the jurisdiction of mixed arbitral tribunals) enabled the advanced protection of private property on the international plane with special attention to the underlying modes of authorisation. It shows how these transformations can be understood as practices of jurisdiction that rely on a mode of self-authorisation. The Palestine Railway Arbitration is particularly illuminating of this point for two reasons. First, from a purely doctrinal perspective, the arbitration is full of formal flaws. It therefore raises the question of the source of the authority of law more pressingly than other arbitrations. Second, it appears that most legal inventions and changes were made out of a sense of necessity without much theorising. These observations point towards an account of law that is attentive to the actual practices of the actors involved.

This final chapter revisits the main findings of the book and ties them to the inquired legal events. The first part restates how property protection came to be prioritised over redistributional policies. The second part draws out the contradiction in the simultaneous proposition of a universal timeless legal order that at once claims to represent modernity. The chapter goes on to summarise how law emerges as a self-authorising practice through the lens of jurisdiction and temporal ordering. It concludes with a reflection of the relationship between the structures developed in this book and the two main pillars of legitimation for the contemporary regime of international investment law, namely the depoliticisation of conflicts and the promotion of development.

This chapter outlines the framework and argumentative structure of the book. It introduces the assertion of jurisdictional authority over concession agreements, which is the key site of the analysis. While concession agreements in the 1920s were considered exclusively a matter of domestic law, in the 1950s a powerful community of scholars and practitioners argued that they should fall under an international legal order and be called ‘economic development agreements’. This internationalisation was a claim for the universality of ideas propagating private property and the sanctity of contract, as well as a rejection of the authority of socialist and anti-colonial policies to redistributive ends. Western industry, former imperial governments and liberal thinkers of law and of economics successfully claimed the international sphere for building a new legal order. The authority for such an international legal regime was based on a temporalisation of difference that relied on concepts like ‘civilisation’ and development to downgrade challenges to the rules of property protection by locating such challenges in the past. This was a process of self-authorisation through legal practice and academic writing, laying the groundwork for the later emergence of the regime of international investment law.

The socialist revolution in Russia introduced large-scale nationalisations and land reforms in order to empower the peasantry and the proletariat with a vision of establishing the ‘first worker’s state’.2 A key instrument in this undertaking was the nationalisation of private property, a transformation that was legal in nature. Indeed, as Scott Newton put it: ‘the elimination of private ownership of the means of production remains a breathtaking and unexampled demonstration of the puissance of law’.3