By David Schneiderman
Are overseas traders the privileged electorate of a brand new constitutional order that promises charges of go back on funding pursuits? Schneiderman explores the linkages among a brand new funding ideas regime and kingdom constitutions - among a constitution-like regime for the security of international funding and the constitutional initiatives of nationwide states. The funding ideas regime, as in classical money owed of constitutionalism, considers democratically approved nation motion as inherently suspect. regardless of the myriad reasons served by means of constitutionalism, the funding principles regime goals exclusively to implement limits, either inside and out of nationwide constitutional structures, past which citizen-driven politics should be disabled. Drawing on modern and old case reviews, the writer argues that any transnational regime may still inspire innovation, experimentation, and the capability to visualize replacement futures for handling the connection among politics and markets. those pursuits were most sensible comprehensive through democratic associations working at nationwide, sub-national, and native degrees.
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Additional info for Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise
States are mandated, for instance, to provide “fair and equitable treatment” and “full protection and security” of foreign investments. The standard of treatment is expected to be no less favorable than that required by customary international law or, perhaps, one even greater (Choudhury 2005; Dolzer 2005; Schreuer 2005). Nor may a state impair by “unreasonable,” “arbitrary, or “discriminatory” measures the value of an investment. In NAFTA and other investment disputes, the “fair and equitable treatment” standard has proven to be of some importance in resolving claims in favor of foreign investors, functionally supplanting the prohibition on takings, to which I turn next.
Recent Chinese BITs exploit this opening by listing existing nonconforming measures and future amendments (so long as the amendment does not increase nonconformity) as exempt from national treatment and other standards of protection. China undertakes in these agreements, however, to progressively remove all nonconforming measures. The OECD-drafted MAI similarly contemplated that reservations would be rolled back “with a view to their eventual elimination,” having a “ratchet” or rollback effect (Witherell 1995: 11).
If the constitutional state retains the capacity to identify both friend and enemy (Mouffe 1993: 114; Schmitt 1932), we might look to alternative mechanisms – such as national human rights instruments, discussed in Chapter nine – that safeguard investment and others interests from forms of discriminatory state action. For the purposes of this argument, however, constitutional design is sufficiently compatible with democratic principle if it is open to incorporating political protest, particularly with regard to redistributive conflicts.
Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise by David Schneiderman