New Voices and New Perspectives in International Economic Law

Table of Contents

1. Frontmatter

2. Introduction: The Discipline of International Economic Law at a Crossroads

   Akbar Rasulov

   Abstract

   Old certainties are melting away. An era has drawn to a close. The foundations of the global economic system are rapidly changing. The opening of intellectual horizons that has come in the wake of these epochal shifts calls for a fundamental rethinking of the main functions and tasks of international economic law (IEL) as a disciplinary project. It also calls for a new explanation of international law’s systemic potential, power, and effectivity in the context of contemporary global governance. How does international law influence the workings of international economic governance? What are the main ways in which it can impact on the course of global economic affairs? Drawing on the traditions of legal realism, Marxism, and classical law-and-economics, this essay outlines a four-fold theory of IEL’s regulatory effectivity: IEL as a price-setting mechanism, IEL as a mechanism for the structuring of opportunities, IEL as a mechanism of ideological legitimation, and IEL as a mechanism of disciplining and interpellation. The goal of this theoretical project is to promote an intellectual recalibration of IEL’s disciplinary ambit along fundamentally functionalist lines: the discipline of IEL should study everything that pertains to how the effective legal realities of global economic governance are set up, how they operate, and how they are produced. The dreariness of the déjà vu one feels when looking at the traditional IEL scholarship would have probably felt a lot more tolerable had we somehow been able to muster the sense that the endless reproduction of the established paradigm might eventually lead to something tangibly good and positive in the external world outside our debates. But by and large, we know, that is simply not true. And so the question inevitably arises: if all of that which we have got used to practising as a scholarly community is still getting us nowhere better than where we have been before, why not try something different?

3. The Ordo-Liberal Origins of Modern International Investment Law: Constructing Competition on a Global Scale

   Ntina Tzouvala

   Abstract

   This article historicises contemporary international economic law, with an emphasis on bilateral investment treaties (BITs) and investor-state dispute settlement clauses (ISDS). Reacting to the apparent paradox that the first states to conclude such agreements in the late 1950s were West Germany and Switzerland, it puts forward the argument that we need to pay closer attention to the ordo-liberal origins of international economic law. By focusing on the dual move of internationalisation and judicialisation of economic governance through BITs and ISDS clauses this article contends that both these developments represent attempts to resolve the problem of the politicisation of the global economy, an issue that was central to the ordo-liberal project. In developing this line of inquiry, the article explores some of the core elements of the ordo-liberal theory of law and its relationship with the global economy, focusing specifically on the writings of the German scholar Wilhelm Röpke produced shortly before, during, and immediately after World War II. In this context, international economic law is conceptualised as a mechanism that constructs the ordo-liberal competitive order on a global scale, while ensuring that the state is institutionally strong, yet limited in the functions ordo-liberals considered to be acceptable.

4. A History of Food Security and Agriculture in International Trade Law, 1945–2017

   Michael Fakhri

   Abstract

   One common assumption about international trade law is that its main function as a regulatory system is to reduce the occurrence of trade distortions. Another related assumption is that the development of the contemporary regime of international trade, historically, has been driven by one single overarching doctrine, the principle of trade liberalisation. This article seeks to dispute these assumptions by showing that the contemporary regime of international trade is, in fact, the product of interaction involving three closely related but analytically distinct doctrines: the principle of market stabilization, the doctrine of freer trade, and the principle of food security. Proceeding from this starting point, this article aims to map out an alternative way of approaching the history of international trade law, by exploring how the interaction between these three doctrines has influenced the construction of the contemporary international trade regime, how each of them has come to be defined at different moments, and how these definitions have changed and evolved over time. In doing so, it also offers an alternative understanding of the institutional reality of international trade regulation by placing at the centre of the last seven decades of international trade law history the question of agriculture and by including FAO, UNCTAD, and international commodity agreements alongside the GATT and the WTO.

5. The Authority of Language in International Law: From Sovereignty to Economic Certainty

   Athene Richford

   Abstract

   This article addresses the question of linguistic authority in international law. Its starting contention comes from the idea that the use of certain vocabularies and discursive modalities that are commonly associated with the idea of scientificity, in international law, can be understood primarily as a rhetorical strategy aimed at the mobilisation of a certain kind of authority. Against this background, this article proposes to examine some of the particular tropes, rhetorical moves, and analytical devices that are typically associated with this form of international law discourse. It then explores the structural continuity behind the different deployments of scientific language across different historical and normative contexts, focusing in particular on the doctrine of sovereignty in classical international law and the concept of trade distortion in contemporary international trade law.

6. Taking Local Expectations Seriously: A Fresh Start for Foreign Investment Governance?

   Nicolás M. Perrone

   Abstract

   The international investment regime is one of the most controversial areas of international law. Although there are a number of proposals to reform this regime, most of them are centred on safeguarding states’ right to regulate. This article claims that this approach overlooks important political economy challenges. By looking at foreign investor rights through the lenses of property law and theory, this article shows that the international investment regime privileges foreign investors’ expectations to the detriment of local actors. The costs and risks of foreign investment can exceed negative externalities, as these projects can also undermine local rights and values. A successful reform, therefore, needs to take local expectations seriously.

7. How Do Host States Respond to Investment Treaty Law? Some Empirical Observations

   Mavluda Sattorova, Mustafa Erkan, Ohiocheoya Omiunu

   Abstract

   The proliferation of investment treaty practice and international investment arbitration has led to a boom in the academic literature dissecting various aspects of the evolving rules on investment protection. With the exception of some notable contributions, however, there have been relatively limited efforts to analyse international investment law empirically, and in particular from the perspective of developing countries. This paper aims to fill this gap by offering some insights into the currently under-explored issue of how international investment law influences host state behaviour. More specifically, the aim of this study is to test a number of claims about the transformative impact of international investment law on national governance in developing states. The analysis is carried out through a small-scale empirical case-study which focuses on how responses and reactions investment treaty law has elicited among government officials in host states that have experienced investment arbitration in a respondent capacity.

8. Mamatas and Others v. Greece: How the European Court of Human Rights Could Change Sovereign Debt Restructuration

   Alexandre Belle

   Abstract

   The purpose of this article is to provide an analysis of the Mamatas and others v. Greece decision by the European Court of Human Rights (ECtHR). The case focuses on the retroactive insertion of a Collective Action Clause in Greek sovereign bonds and its conformity with the right to property as enshrined in Article 1 of the first protocol to the European Convention on Human Rights. This article’s main contention is that the ECtHR in Mamatas puts forward a novel approach to both sovereign debt restructuration and the interpretation of the fair balance requirement contained in Article 1. This approach focuses on the behaviour of holdout bondholders and the market acceptance of specific measures enacted to facilitate a restructuration process in order to justify their proportionality. Such a reasoning can be read as an implicit judicial endorsement of the principles on sovereign debt restructuring advocated by the UNCTAD and the United Nations General Assembly.

9. Doing Things with Political Economy (as a Public International Law Academic)

   John D. Haskell

   Abstract

   An increasing number of international law scholars have become drawn in recent years to the study of political economy. In trying to situate the linkage between international law and political economy in its purported historical context, much of this scholarship has tended to construct a vision of a historical relationship between them that typically extends no further back than the 19th century. In contrast, this article situates this relationship in a longue durée with two aims. First, to outline some of the extra-legal factors that installed the historical conditions for a style of international law to emerge that would facilitate ‘public’ administrative capacity and the institutional practices that underwrite forms and processes of contemporary ‘private’ economic life. And second, to experiment with ways that the concept of political economy may be used within international law scholarship.

10. Social Consensus in the EMU: The Constitutional Tenets of a Currency Union

    Maria Tzanakopoulou

    Abstract

    Constitutions are juridico-political tools that are used to pacify social conflict and to maintain the conditions for social peace in a given political entity. They perform this function in many ways: from creating a political trade-off between opposing social forces to forging unity through the idea of a common national belonging. Monetary integration of the kind advanced in the European Monetary Union (EMU) could possibly be a promoter of constitutionalism in the region: it is a key element of political integration and thus a potential driver of a common pan-European identity. However, monetary integration cannot in and of itself satisfy the demands of constitutionalism. The European Union effectively blocks any expression of European-wide social conflict, and locks European masses in a battle of nation versus nation. It is therefore hard to see how constitutionalism in the EMU can dispose of its national ties.