Investment Rules and the Denial of Change

Abstract

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 limited government beyond their domestic trajectories and that promote versions of the ‘rule of law’ with a distinctly neo-liberal bent. Ironically, this portrayal of investment arbitration as an institutional hammer of neo-liberalism that is just now hitting its nails coincides with a resurgent Keynesianism and renewed regulation at the domestic level, making the investment-rules regime’s claims to detachment from politics and government look all the more disingenuous or naive. My main criticism of the book is that its claim of ‘constitutionalization’ is open to doubt given that (1) the treaties can be abrogated, (2) the treaties lack the normative power of domestic constitutions, and (3) investment arbitration lacks integral components of a liberal constitutional structure including institutional safeguards of judicial independence. Nevertheless, Schneiderman offers powerful insights on the capacity for alternative visions and 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.