Investment Rules and the Denial of Change

Gus Van Harten
2010 Social Science Research Network  
The article reviews Constitutionalizing Economic Globalization by David Schneiderman. In the book, Schneiderman examines the relationships between international investment rules and constitutional principles of liberal democracy and identifies how arbitrators have interpreted investment treaties in ways that take constitutionalist notions of limitedgovernmentbeyondtheirdomestictrajectoriesandthatpromoteversionsofthe'rule
more » ... trayalofinvestmentarbitrationasan institutional hammer of neo-liberalism that is just now hitting its nails coincides with a resurgentKeynesianismandrenewedregulationatthedomesticlevel,makingtheinvestmentrules regime's claims to detachment from politics and government look all the more disingenuousornaïve.Mymaincriticismofthebookisthatitsclaimof'constitutionalization'is opentodoubtgiventhat(1)thetreatiescanbeabrogated,(2)thetreatieslackthenormative powerofdomesticconstitutions,and(3)investmentarbitrationlacksintegralcomponentsofa liberal constitutional structure including institutional safeguards of judicial independence. Nevertheless,Schneidermanofferspowerfulinsightsonthecapacityforalternativevisionsand resistance. It is also refreshing, in an age of too much talk about globalization, to see Schneiderman focus on national governments and their power to undo that which has been done.
doi:10.2139/ssrn.1612345 fatcat:a76piuexvvhbrezm7rpc4vqzbm