In the end, the conflict between Barrick Gold and the Dominican State will teach us a transcendental lesson: the legal framework for international investment in a country, especially one with high poverty rates like the Dominican Republic, must be integrated around the concept of development, as the logical and significant core of the system. That is, an investment framework that has development as its fundamental axis, as an identity of significance or logical connection.
All regulations intended to govern the establishment and treatment of international investments must be consistent with the objective of developing international investment law. The idea is to move from the concept of development, often outlined in law as a mere decorative figure or a vague concept, to establishing development as a clear and effective objective of law.
A government welcomes investment into its territory because it wishes to contribute to the establishment of a welfare state. Consequently, the concept of "development" must be legally established and clearly established as a condition of investment, with operational legal effects.
The Constitution of the Republic clearly establishes this principle when establishing the right to free enterprise in Article 50. It also safeguards the national interest by granting the State the power to establish measures that promote competitiveness and foster the country's comprehensive development (Art. 50.2); as well as to demand compensation consistent with the public interest and environmental balance, especially when it comes to the exploitation of natural resources (Art. 50.3).
The Foreign Investment Law was created with an explicit purpose: to contribute to "economic growth and social development." This law is a unilateral act of the State and, consequently, generates international obligations, insofar as all investment arriving in Dominican territory must comply with its terms and operates as a condition for establishing the investment. However, this investment regulation remains precarious and requires modification.
urgently.
Does the Barrick-Gold Contract contribute to development?
Fortunately, the State, when signing the Contract with Barrick-Gold, was consistent with this objective or purpose of the Law. Indeed, the Contract has made direct reference to the fact that the Dominican State "has a special interest in promoting and developing the mining industry as one of the tools in the fight to eradicate poverty..." However, we see how the concept of development is conceived as a condition for establishing the investment, but in a vague and ambiguous manner.
These general principles, as I have observed, need to be transformed into a logical and meaningful system. A legal framework for investments in a developing country must clearly establish in its rules that an investment contract whose purpose cannot be achieved by the State lacks cause. If the will of the State, that is, social development, cannot be achieved, then the State must be able to achieve its purpose.
obtained, because there is no cause, or because it is useless, or because its value is ridiculous, there can be no valid Contract.
Development, seen as an end of investment law, seeks only to impose certain limits on the unlimited deployment of individuality, to the extent that it requires the parties to respect ethical and legal values, so that none of them incurs in the abuse of their rights to the detriment of the co-contracting party.
This is how legal certainty is presented in balance, a notion that must be viewed from both sides of the contract, not seeking an unequal relationship, but rather a mutual limitation of actions, in order to avoid what Spencer calls a spectacle of conflicts arising when each party pursues its own goal without regard for the rights of its neighbors. This is the idea of equity that must be defended by investment legislation; law and ethics would then reveal themselves to us in perfect harmony.
It is necessary to initiate new processes of communication with society, to give communities greater participation in the democratic formulation of law. It is necessary to remain focused on reality; it is necessary to understand development as the reason for law, to identify its limits, and to recognize that national needs should guide the issuance of laws.