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Constitutional judges have adopted an active role in the review of international investment agreements (IIAs) as a response to the harmful effects on public policy and spending brought about by the claims of foreign investors against Latin American States. Thus, the discussions in the constitutional courts of Colombia and Ecuador on the validity of this type of treaties have been aimed at guaranteeing the regulatory capacity of States in matters of public interest, recognizing that the scope of application of these treaties requires a detailed and in-depth analysis of their clauses.

General features of international foreign investment law

International foreign investment law is a regime of public international law that governs the protection of foreign investments by their host States. Protection takes the form of international treaties —commonly called international investment agreements (IIAs)—signed between two or more States that contain obligations on the latter regarding the treatment to be accorded to investors from other States parties to the treaty. The most important particularity of IIAs is that they grant foreign investors a right of direct access to international arbitration tribunals in case they consider that the host State of their investment has violated any of the protections conferred by the respective treaty or breached any of the obligations contained therein. This distinguishes the international foreign investment law regime from other public international law regimes, such as human rights law, which, although it also grants access to international jurisdictions to individuals, makes it conditional upon the exhaustion of domestic remedies.