In Conversation With Dr. Claiton Fyock: International Investment Law as Development

Aerial view of Favela da Rocinha, Rio de Janeiro (image via Shutterstock)

Dr. Claiton Fyock is a Lecturer in Law at the University of Essex. He researches International Economic Law and Development from critical methodologies. He teaches Trade, Investment, Human Rights and Environment; Jurisprudence; and Human Rights. Claiton recently concluded his PhD thesis ‘International Investment Law as Development: The Ideological Constraint of the Grand Bargain.’ and is interviewed for the ELR Blog about the originality of his research, his PhD journey and his future plans.

In two sentences, what is your thesis?

My thesis examines how the narrative of the ‘grand bargain’ found in International Investment Law (IIL) constrains the legal and political economic agency of developing states participating in the regime.

The grand bargain posits that, in ceding a portion of their regulatory sovereignty to IIL, developing states signal to foreign investors that they are committed to the legal protections offered by the regime, which is presumed to benefit developing states by encouraging further Foreign Direct Investment (FDI) to enter their borders.

How did your research emerge?

I came to this research out of a deep skepticism about the project of international economic law prompted by engagement with Marxist theory and Third World Approaches to International Law. I was and remain very interested in how international law helps entrench and reproduce the current exigencies of inter- and intranational wealth inequality and environmental degradation – exigencies that are particularly felt in the Global South.

My intuition was that international law’s role in the reproduction of human and environmental exploitation was perhaps most readily apparent in its involvement at the sites of economic production (sites increasingly located in the Global South). IIL seemed to be the most obvious point of departure for this reason, and the more I researched the topic, the more IIL’s constraint on developing states’ legal and political economic agency became apparent.

How would you describe your argument and methodology?

The thesis questions the rationale of the grand bargain by developing a theory of ideology critique I label the ‘ideological process’. This method attempts to account for how developing states are simultaneously constrained by both the conceptual and practical elements of IIL.

I argue that, rather than being purposed for the legal protection of foreign investment, the raison d’etre of IIL is the facilitation of the accumulation of capital for a transnational capitalist class. It does this largely through a narrative about development embodied in the notion of the grand bargain. Though the grand bargain’s discursive weight has waned in recent years, coinciding with contestation over the regime’s ability to encourage FDI, it remains that international organisations continue to promote FDI and IIL as necessary factors in developmental initiatives such as the Sustainable Development Goals.

My thesis argues that, through the practice of international arbitration, treaty-making and scholarly engagement, IIL’s features embody and entrench the hegemonic, specifically capitalist concepts put forth by the regime’s more powerful actors.

Consequently, the capitalist iterations of features such as development’s role in the definition of investment, sovereignty in cases of indirect expropriation and consent in investor-state contractual disputes circumscribe the plurality of these same concepts.

By accepting the narrowly capitalist iteration of these concepts in their participation in IIL, developing states accept a circumscribed agency in configuring their own political economic and legal policies.

What is your contribution to research in your subject area?

My contribution to the subject area is two-fold:

First, I provide an original approach to ideology critique and international law. While ideology critique is a long-standing Marxist approach to legal analysis, previous uses of the method have either been preoccupied with a fixed definition of ideology or overly focused on power’s discursive role in entrenching ideological practices.

My approach is to treat ideology as a dynamic process which accounts for both the relationship between practice and concept and the impact hierarchical power relations have on the relationship between practice and concept. By approaching ideology this way, I am able to demonstrate how the operation of IIL reifies and entrenches particularly capitalist iterations of some of IIL’s most fundamental concepts – development, sovereignty and consent.

My hope is that this method would be applicable across various areas of international law and provide scholars a new way of apprehending ideology in legal practice.

Second, my thesis places IIL’s justification for itself (the grand bargain) within the context of global concerns about wealth inequality and environmental harm while not relying on competing legal norms or criticisms of neoliberalism. While there have been many effective criticisms offered against the regime from disciplines such as human rights (several fine examples originate from here at the University of Essex), my research attempts to locate IIL’s inherent deficiencies at the level of the capitalist political economy.

I take an explicitly radical approach which contends that the problems identified with IIL are intrinsic to its explicitly capitalist operation – it will only ever reproduce capitalist practices and concepts; practices that will only ever facilitate the accumulation of capital for a transnational capitalist class. Accordingly, efforts at its reform are misplaced; IIL’s problems are intrinsic to the structure of the regime itself. Implicit in my argument is that nothing short of abandonment will rectify IIL’s harms.

However, this need not be of concern for states or practitioners of international law. There is not a fixed necessity for any one of IIL’s practices or conceptual formulations. Rather, effort should be focused on how international law can meet the needs of communities and the environment in ways alternative to the capitalist political economy.

Has your view of your research topic changed during the research?

I wouldn’t say that my view of IIL has changed. It has certainly, obviously become much more nuanced, but I believe my original intuition about IIL’s role in the previously mentioned problems of wealth inequality and environmental degradation has remained.

What has changed over the course of my research is my understanding of the pliability of international law and its scholarly discourse. Early in my research I had a tendency of viewing IIL as a fixed thing. Over the course of the PhD, I was constantly reminded how swiftly things can change in a regime such as IIL – for example, the discourse about sustainability has exploded in the scholarship over the last 5 years.

What would you advise someone who is about to embark on a PhD journey in your field?

I have a hard time thinking that there is any kind of universal advice for embarking on a PhD in international law. One thing I’m happy I did consistently throughout the process was read outside the field of law, particularly theory. I do think legal research can become very insular. I very much believe that there is a lot to be gained from venturing outside of this silo and embracing multidisciplinary approaches.

In doing so, we’re better able to identify potential alternatives to legal practices that might bring about the kind of progressive changes I believe are needed with issues such as wealth inequality or environmental degradation.

Now that you submitted your thesis, how do you plan to move forward in terms of your research?

While writing my thesis I had the opportunity to publish a side piece on international economic law and degrowth and some polemics on climate litigation and corporate actors. I plan to continue to investigate the nexus between international economic law, development and the environment with some upcoming articles.

After the publication of these works, I hope to revisit and transform my thesis into a monograph and look forward to submitting the book proposals after some time off from it.

The Online Safety Bill: Where Are We Now and Will It Succeed?

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The House of Lords is currently debating at Committee Stage the Online Safety Bill, a landmark piece of legislation which introduces a new set of internet laws to protect children and adults from online harms.

The Bill will establish a regulatory framework for certain online services. These include user-to-user services, such as Instagram, Twitter and Facebook, and search services, such as Google.

The UK government’s stated aim in introducing the Bill is “to make Britain the best place in the world to set up and run a digital business, while simultaneously ensuring that Britain is the safest place in the world to be online”.

The BIll will place duties of care on both regulated user-to-user service providers and regulated search service providers. The regulated service providers would have duties relating to, among other things: (a) illegal content; (b) protecting children; (c) user empowerment; (d) content of democratic importance, news publisher content and journalistic content; (e) freedom of expression and privacy; and (f) fraudulent advertising.

The Bill also does two other distinct but interconnected things. It introduces age-verification requirements in relation to pornography providers (which are not user-to-user); as well as new criminal offences, e.g., encouraging self-harm and epilepsy trolling.

This makes it a long, wide-ranging and complex Bill.

Moreover, the Bill will place more responsibility on technology giants to keep their users safe. It will give Ofcom, the UK’s communications regulator, the power to levy fines against non-compliant providers, and would make senior managers liable to imprisonment for not complying with a direction to provide Ofcom with information.

But what impact is the BIll expected to have? What concerns are there about the implementation of this new regime?

Prof. Lorna Woods (Professor of Internet Law, University of Essex), who devised the systems-based approach to online regulation that has been adopted by the Government and whose work is widely regarded as laying the groundwork for the UK’s Online Safety Bill, was recently interviewed on this new regulatory approach.

Photo by Austin Distel via Unsplash

On 11 May 2023, Prof. Woods stepped inside BBC Radio 4’s Briefing Room to be interviewed by David Aaronovitch. She talked about what is actually in the Bill, how the new internet laws are intended to work and what potential weaknesses still remain. The programme can be accessed here.

Prof. Woods also joined Conan D’Arcy of the Global Counsel tech policy team to talk about the UK tech regulation, discuss recent criticisms of the Online Safety Bill, as well as the regulation of generative AI tools like ChatGPT. You can listen to the podcast here (published on 17 May 2023).

New Standards Code launched by press regulator IMPRESS

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By Alexandros Antoniou, Essex Law School

On 16 February 2023, the press regulator IMPRESS launched its new Standards Code, with key changes including guidance on AI and emerging technologies, stricter measures on tackling misinformation, stronger safeguarding guidelines, and a lower discrimination threshold.


IMPRESS is the only British press regulator to have sought formal approval from the Press Recognition Panel (PRP). The Panel was established in the aftermath of the phone-hacking scandal to ensure that any future press regulator meets certain standards in compliance with the Leveson report recommendations. IMPRESS is distinct from the Independent Press Standards Organisation (IPSO), Britain’s other press regulator which enforces the Editors’ Code of Practice but does not comply with the majority of the Leveson report’s independence requirements. IPSO regulates some of the more established UK press (e.g., the Mail newspapers, the News UK titles and their respective websites), whereas publishers regulated by IMPRESS tend to be newer and more digitally focused (e.g., Bellingcat, Gal-dem and The Canary). IMPRESS is viewed by some media campaigners (e.g., Hacked Off) as “the most popular” complaints-handling body in the country. Its membership has risen from just 26 publishers in 2017 to 113 today.

The IMPRESS Code was first published in 2017 with the aim of guiding media professionals and protecting the public from unethical news-gathering activity. It applies to all forms of news delivery, including print publications, news websites and social media, and to any individual or organisation gathering information and publishing news-related content. As the media landscape has rapidly evolved in the last few years, changes were introduced in February 2023 to help build trust and improve accountability in the industry, while covering a more diverse range of digital news creators (including publishers, editors, journalists, citizen journalists, reporters, bloggers, photojournalists, freelancers, and content creators) and their practices.

Some key changes

A major change concerned the issue of inaccurate content and was propelled by the challenges faced in distinguishing true information from misinformation and disinformation, including that generated by AI. To help journalists and publishers ensure that their material is supported by verifiable and legitimate sources, the Code and its associated Guidance on Clause 1 (Accuracy) and Clause 10 (Transparency) provide advice on fact checking and source verification, particularly within an online context. Specifically, the Code now requires publishers to exercise human editorial oversight to ensure the accuracy of any AI generated content, clearly label such content, and take reasonable steps to limit the potential spread of false information (deliberately or accidentally) by verifying the story with other sources and checking the information against other reliable sources.

Changes were also introduced in relation to the coverage of news stories involving children. They all acknowledge children’s media literacy, autonomy, and protections that are necessary to develop them as people. The revised Code defines a child as anyone under the age of 18 and places an obligation on publishers to “reasonably consider” requests from children to remain anonymous during news-gathering and publication (Clause 3.3), as well as requests from those under 18 when the article was published to anonymise that news content in the present day (Clause 3.4). This is a welcome recognition of the proposition that individuals should not be adversely affected later in life because stories that concern them as children remain widely available online. Importantly, under the new Code, an appropriate adult cannot veto a child’s refusal or revocation of consent (paragraph 3.1.2 of the Guidance to the Code).

Because of the internet and social media, publishers must also take extra care not to identify children indirectly through “jig-saw identification”, i.e., the ability to work out someone’s identity by piecing together different bits of information supplied by several features of the story or across articles or news outlets (the same can apply to adults, e.g., in cases where victims of sexual offences enjoy anonymity by law). The Code (Clause 3.2) requires publishers to consider using techniques or practices that remove identifying data (e.g., the area of a city where they live, their parents’ occupations or other unusual details that could lead to a child’s identification). This practice also helps publishers comply with minimum use requirements under data protection law.

Another significant change concerns the provisions on discrimination under Clause 4. The previous version of the Code stated that publishers would be found in breach if they incited hatred “against any group … [on any] characteristic that makes that group vulnerable to discrimination”. This reflected the legal standard under UK law, but it was not adequately enforced, particularly online. The revised Code holds publishers to stricter standards. Clause 4.3 reads: “Publishers must not encourage hatred or abuse against any group” based on those characteristics (emphasis added). The new wording lowers the threshold for what IMPRESS regards as discriminatory coverage and takes into account its potential effect not just on the communities, but on the society as a whole. This change, according to IMPRESS’ Deputy Chief Executive Lexie Kirkconnell-Kawana: “accounts for prejudice that could be more insidious and be more cumulative or more thematic, and not a direct call to action or violence against a group of people – because that’s an incredibly high threshold, and it’s not often how news is carried. You don’t see headlines saying […] ‘Take up arms against x group’.”

Clause 7 on privacy highlights that, when determining the privacy status of the information, publishers must give “due consideration to online privacy settings” (Clause 7.2(b)). Public interest justifications may, however, apply. The provision challenges the widely held misconception that information found or posted online is automatically made public or free to use. The Guidance to the Code acknowledges that an individual’s expectation of privacy may be weaker where no privacy settings are in place but clarifies that the absence of privacy settings will not necessarily prevent a breach of this Clause. It does not automatically mean that an individual consents to publishers or journalists publishing their content, which may reach an entirely different – or even wider – audience than the audience usually viewing the content on that individual’s account (paragraphs 7.1.4 and 7.2.6 of the Guidance to the Code).

Editorial responsibility and accountability with an outlook to the future

The new Code is the outcome of an intensive two-year review process, which involved consultation with academics, journalists, members of the public and industry stakeholders. Richard Ayre, Chair of IMPRESS, stated: “With more news, more sources, more publishers, more opinions than ever before, the opportunities for journalism are limitless. But nothing’s easier for a journalist to lose than public trust. This new Code sets the highest ethical standards for IMPRESS publishers, large and small, and whatever their point of view, so the public can confidently engage with the news of today, and tomorrow.”

This article was first published on the IRIS Merlin legal database. The original piece can be viewed here.

Illegal Migration Bill: Essex Law School experts on the international system of protection against arbitrary detention express concerns in their written evidence to the JCHR

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On 5 April 2023, Dr. Sabina Garahan (Lecturer, Essex Law School) and Dr. Matthew Gillett (Senior Lecturer, Essex Law School submitted evidence to the Joint Committee on Human Rights (the “JCHR”) as part of its legislative scrutiny of the Illegal Migration Bill. Their submission focused on detention-related questions posed by the JCHR.

Dr. Garahan recently completed her AHRC-funded research on the right to liberty under European human rights law. Dr. Gillett is the Vice-Chair of the UN Human Rights Council’s Working Group on Arbitrary Detention (the “Working Group”). The submission expresses shared concerns that the proposed legislation conflicts with fundamental protections against arbitrary detention set out in the European Convention on Human Rights (the “ECHR”) and the International Covenant on Civil and Political Rights (the “ICCPR”).

The authors’ submission identifies several areas in which the Bill conflicts with the right to liberty as enshrined in Article 5 of the ECHR. Importantly, it raises the possibility that the UK Government may be the first Council of Europe Contracting State in history to be found in breach of Article 17, which prohibits the destruction and excessive limitation of ECHR rights.

Dr. Garahan’s and Dr. Gillett’s written evidence equally highlights the potential breach of Article 18 in conjunction with Article 5, on account of the likelihood that the legislation was introduced in bad faith under the ECHR – namely, on the basis of aims not listed under Article 5. Immigration detention that is predominantly imposed on grounds other than those permitted by Article 5 will be found to violate Article 18. The Government’s documented anti-migrant rhetoric, which has sparked significant concerns among international expert bodies, and the expedited passage of the Bill through Parliament strongly indicate the existence of bad faith.

Finally, the submission addresses likely violations of Article 9 of the ICCPR, which protects against arbitrary detention in a range of contexts including immigration-related processes, as held by the Working Group. In introducing discretionary powers to detain anyone suspected of entering the UK unlawfully, for such period as is “in the opinion of the Secretary of State” reasonably necessary (namely, without any time limit), the Bill undermines the exceptionality and necessity limitations of immigration detention.

Dr. Garahan and Dr. Gillett are members of Essex Law School/Human Rights Centre and the Essex Constitutional and Administrative Justice Institute. Their full submission can be accessed on the JCHR website here and a copy can be downloaded from our ELR Blog below.