Global Constitutionalism and International Economic Law: The Case of International Investment Law

Are there discernable the outlines of an emergent global economic constitutional order? If the current global scene is understood as hybrid and plural, there will be no single, unitary global economic constitution in place at the present moment. There only will be partial manifestations—observable, regime-specific instances—of what might become part of such a global order. Regime specific instances can be found, for instance, in the domain of international investment law. Though there is variation among the web of 2800 bilateral investment treaties, there are sufficient commonalities that will be familiar to constitutional lawyers. It also is apparent that the body of jurisprudence produced by investment tribunals resembles, in some important ways, the output of high court decision making under national constitutional law. The paper begins by outlining two principal modes of understanding global constitutional developments, identifies some familiar constitutional tropes found in investment law, and closes with a discussion, by way of illustration, of an investor’s claim, unresolved on the merits, that resembles an early nineteenth century US constitutional dispute concerning the sanctity of contracts.