A Response to Mark Tushnet by Robert Ahdieh

[Robert Ahdieh is a Professor at Emory Law School]

At the outset, my thanks to the editors of the Virginia Journal of International Law for inviting me to contribute to this symposium, to my friends at Opinio Juris for hosting it, and to Professor Tushnet for his valuable contribution to ongoing debates about constitutionalism, globalization, and their interrelationship.

Needless to say, Professor Tushnet’s essay posits a bold claim: that we are moving inexorably toward a globalized constitutional law. I am deeply sympathetic to this claim – not merely as a positive matter, but in normative terms as well. Bracketing these sympathies for the moment, however, I propose to devote this post to a critique of the first of the pair of “bottom-up processes” of inevitable globalization that Professor Tushnet – borrowing from Professor David Law – highlights in the essay.

That first claim posits that national-level competition for investment capital will drive nations toward heightened constitutional protection of property rights, including by way of independent courts. I concur with Professor Tushnet about the underlying market dynamic at work. Global competition for capital – a competition in which the United States itself is increasingly a competitor – is quite fierce. Mechanisms of competitive advantage, including in the supply of desired institutions, would consequently seem to be a high priority for national policymakers.

If recent years are any indication, however, national advantage in such competition has not primarily been sought by way of constitutional law and independent courts.  Rather, it has been sought by way of international law and independent arbitral tribunals.

I refer, of course, to the much-discussed rise of bi-national investment treaties (“BITs”) over the last several decades. In the 1970s, fewer than a dozen BITs were entered into each year. By the 1980s, that number had doubled, generating a total of 700 BITs by 1994.

As a matter of substantive law, BITs are designed to provide foreign investors with just the kind of protection against threatened expropriation that Professor Tushnet suggests can be expected to drive substantive changes in national-level constitutional norms. By way of process, meanwhile, BITs empower investors to bring non-espoused claims directly against the host state – an innovation that remains the exception rather than the rule in international law, yet would seem to offer a ready alternative to investors’ reliance on the national court system. (In their earliest incarnation, of course, such investor protections – including against “denials of justice” – were designed precisely to allow foreign nationals to avoid national courts.)

National competition for investment capital, then, can be – and has been – pursued with no need to engage in messy efforts at constitutional reform, let alone the extension of constitutional protections to domestic constituencies.

The BIT route may, of course, be inferior to national-level constitutional reform in any given case. Given the particular dynamic in a given country, for example, BITs’ differential protection of foreign and domestic actors and their seeming whiff of imperialism might prove politically problematic.

But a more important caveat might be the following: Some (including myself) have identified a species of “constitutional” harmonization in the gradual emergence of substantive and procedural norms at the international level, by way of the decisions of transnational institutions, including the international arbitral tribunals charged to adjudicate investor-state disputes arising under BITs.

This would seem to echo what Professor Tushnet casts as a “top-down” process of the globalization of constitutional law. Given its genesis in the competition for investment capital he identifies as a “bottom-up” process, on the other hand, it might be better understood as a hybrid dynamic of sorts.

In fact, one might wonder whether much of the globalization of constitutional law does not take place at the confluence of top-down and bottom-up processes, such that any sharp demarcation between them becomes difficult to sustain.

At a minimum, however, the widespread reliance on BITs noted above would suggest that constitutional globalization in the form of national-level constitutional reform and the emergence of independent courts may not be entirely inevitable.