Investment protection standards as global constitutional law

Abstract

The chapter considers whether the substantive standards of investment protection contained in investment treaties can be understood as an emerging form of global constitutional law. It argues that investment treaty law is an example of what the global constitutionalism literature refers to as 'supplementary constitutionalization', being a type of international law which addresses issues that have traditionally been regulated principally by domestic constitutional and administrative law. Undertaking a detailed analysis of three standards of treatment (the rules on expropriation, fair and equitable treatment, and national treatment), the chapter advances existing debates over whether the investment treaty regime exhibits 'constitution-like' qualities. The supplementary constitutionalization perspective helps better understand the two-way national-international interaction that is central to the investment treaty regime. The perspective also foregrounds key normative questions regarding how the investment treaty regime can reshape domestic constitutional balances.