1 The Gesellschaf t zur Förderung des Schutzes von Auslandsinvestitionen e. V.; its headquarters are in Cologne. According to its statement of purpose, “The Society unites independent personalities in German business, law and politics, their object being to help remove the disregard of vested foreign rights and interests in international business which has become more noticeable after the last war and make constructive suggestions upon how this unfortunate development can be reverted which is undermining the free world economy and international confidence.“

2 That of economics. As Kruschchev put it in late 1957, ‘ ‘ We declare war upon you in the peaceful field of trade.“

3 The ICC proposal may be found in its Brochure No. 129, entitled: “International Code of Fair Treatment for Foreign Investments.“

4 Resolution of the 16th Congress of the ICC, Hay, 1957, printed in its Brochure No. 193.

5 The Conference was held under the joint auspices of Time-Life, Inc., and the Stanford Research Institute.

6 Res. 619 (XXII), entitled “Financing of Economic Development,” U.N. Doc. B/2929, ECOSOC, 22nd Sess., Official Becords, Supp. No. 1, Aug. 17, 1956.

7 Mikesell, Promoting United States Private Investment Abroad (NPA Planning Pamphlet No. 101, October, 1957). See also Proceedings of the 52nd Annual Meeting of the American Society of International Law, April, 1958, Panel VI: Legal Problems of International Private Enterprise, pp. 199-228; and Proceedings of the International Investment Law Conferences held in Washington, D. C, Feb. 24-25, 1956, and Nov. 21- 22, 1958, sponsored by the American Society of International Law. See also Brandon, “Legal Aspects of Private Foreign Investments,” 18 Fed. Bar J. 298 (1958).

8 Art. 12 of the ITO Charter. In Brown, The United States and the Bestoration of World Trade 271-272 (1950), it is suggested that the ITO, if given the opportunity, could have worked out a code for the protection of private investment.

9 For discussions, see Walker, , ‘ ‘ Treaties for the Encouragement and Protection of Foreign Investment: Present United States Practice,” 5 A.J. Comp. Law 229 (1956)Google Scholar; idem, “Provisions on Companies in United States Commercial Treaties,” 50 A.J.I.L. 373 (1956); Wilson, “Property-Protection Provisions in United States Commercial Treaties,” 45 A.J.LL. 83 (1951).

10 68 Stat. 847 (1954), as amended, 70 Stat. 555, 558 (1956).

11 E.g., in 1931 the International Chamber of Commerce suggested treaty protection of private investment; and in 1929 a conference to that effect was held in Paris pursuant to Art. 23(e) of the League of Nations Covenant. See Lewis, The United States and Foreign Investment Problems, Ch. 12 (1948).

12 The quotations are from the commentary on the draft code published with the code by the Society to Advance the Protection of Foreign Investments. This document is 67 pages in length, of which the greater part is devoted to statements of the reasons for such a code, the present status of international law as it relates to protection of private property, and the like.

13 Ibid

14 Art. IV.

15 Art. V.

16 Art. IV.

17 Art. VI.

18 Art. VII.

19 Art. VIII.

20 Art. X.

21 Id.

22 Art. IX.

23 Art. XI.

24 Id.

25 E.g., Time Magazine, Oct. 28, 1957; Life Magazine, Oct. 28, 1957; American Banker, Oct. 16, 1957; New York Times, Oct. 16, 1957; Journal of Commerce, Dec. 3, 1957; Financial Times (London), Nov. 27, 1957.

26 A criticism of the concept of harmony of interests in international economic relations can be found in Myrdal, Economic Theory and Underdeveloped Begions (1957).

27 See text at note 34 below.

28 E.g., by Miguel A. Cuaderno, Governor of the Central Bank of the Philippines and then Chairman of the International Monetary Fund, who expressed the feeling that peoples of the underdeveloped countries fear that private investments from abroad might dominate the economic, if not political, affairs of their nations. See New York Times, October 16, 1957. Cuba's Guillermo Belt called the proposed investment code “ a return'to the Gay Nineties.” Time Magazine, October 28, 1957.

29 E.g., the Ministers from Ghana, Ceylon, and Indonesia.

30 Resolution 626 (VII), Dec. 21, 1952, General Assembly, 7th Sess., Official Records, Supp. No. 20 (A/2361), p. 18. Both the International Chamber of Commerce and tlie National Association of Manufacturers expressed grave misgivings over the resolution. The ICC adverted to “the grave anxiety aroused in the business world” by the resolution, and asserted that emphasis should also be given to respect for contractual obligations, the duty of compensation in case of nationalization, and to the fair treatment of foreign capital and enterprise. ICC Brochure No. 175, p. 36 (July, 1953). See James N. Hyde, “Permanent Sovereignty over Natural Wealth and Resources,” 50 A.J.I.L. 854 (1956).

31 To put it in another way, is there a community of interest in the present trading system between the already industrialized nations and the less developed countries? See, in this regard, Myrdal, note 26 above; Hilgerdt, “Uses and Limitations of International Trade in Overcoming Inequalities in World Distribution of Population and Resources,” in 5 Proceedings of the World Population Conference 46 (U.N. 1955. XIII.8): “ I t is time to recognize that … trade has proved inadequate to bring about close international integration, both because of the special difficulties affecting economic relations among countries during the past twenty years, usually referred to as international economic disequilibrium, and for more fundamental reasons.” Ibid, at 49.

32 Miller, , “Foreign Trade and the ‘Security State': A Study in Conflicting National Policies,” 7 Journal of Public Law 37, 91 (1958).Google Scholar

33 The international economic institutions created in recent years, such as the International Monetary Fund and the International Bank for Reconstruction and Development, are essentially attempts to re-create patterns of commercial relations typical of the nineteenth century. They are examples of the difficulties which may be expected in attempting to refurbish institutional arrangements of a past era. Some remarks of the late Lord Keynes are meet in this connection: “ I am … a hopeless skeptic about this return to nineteenth century laissez-faire, for which you [his correspondent] and the State Department seem to have such a nostalgia.” Quoted in Harrod, The Life of John Maynard Keynes 567 (1951).

34 Mikesell, note 5 above, at 15.

35 The term is also used by Gardner, Sterling-Dollar Diplomacy 383 (1956), and by Röpke (although called “Juridicism“) in his Hague Academy lectures entitled “Economic Order and International Law,” 86 Becueil des Cours 207 (1954).

36 Röpke, note 35 above. Again Gardner, note 35 above, also uses the term.

37 Compare the following statements made at the October, 1957, meeting of the GATT Contracting Parties: Sir Claude Corea of Ceylon: There is a “persistent phenomenon of the failure of the exports of nonindustrialized countries as a whole to keep up with the general rate of trade expansion… . It seems likely that this trend will continue.” Shri T. Swaminathan of India: “You, Mr. Chairman [Sir Claude Corea], have drawn attention to the one significant fact in the trend of international trade, namely, that the commerce of the industrialized countries has expanded a good deal more satisfactorily than that of less developed countries.” Professor Sunardjo, Minister for Trade of Indonesia, after noting that a GATT report showed world trade at record levels in volume and value, maintained that: “the increase in value of international trade was mainly due to the expansion of trade among industrial countries, while the trade between industrial and nonindustrial countries showed unfortunately an unfavorable trend… . The progress made by the industrial countries has not been matched by the less developed countries, neither in respect of the expansion of international trade, nor in respect of economic growth.“

38 Cf. Brierly, “International Law: Its Actual Part in World Affairs,” 20 International Affairs 381, 386 (1944): Order precedes law, “for it is never law that creates order.“