Ramraj ESADE Barcelona 8 February 2013 Private Power Resurgent Privatization State Capitalism and the Future of Modern Constitutionalism background mapping constitutionalism states companies and regulators in a postnational world ID: 247155
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Slide1
Victor V.
RamrajESADE Barcelona8 February 2013
Private Power Resurgent?
Privatization, State Capitalism, and the Future of Modern Constitutionalism
Slide2
background
mapping constitutionalism: states, companies, and regulators in a post-national worldassuming… the orthodox’ liberal constitutional goal of limiting state power
the
transformation of
private powerthe growth of global regulation… how do we make sense of state constitutionalism? this lecturewhat are the implications of the resurgence of transnational private power for domestic constitutionalism?Slide3
background
mapping constitutionalism:states, companies, and regulators in a post-national worldassumptions of constitutionalism:the subordination of private power to public power
the hierarchical and vertical orientation of constitutional law
the nexus between constitutional law and territorySlide4
background
mapping constitutionalism:states, companies, and regulators in a post-national worldclaim: constitutionalism needs to…acknowledge the blurring line between
public and private power
rethink
‘state action’ doctrine and apply constitutional norms to private actorsloosen the link between constitutional jurisdiction and territorybook outlinehistory of company, constitution (2, 3)private power resurgent? (4)global regulation (5)rethinking constitutionalism (6, 7)Slide5
aim of this talk
implications of private/hybrid power for modern constitutionalismprivate power resurgent?the rise of multinational enterprises
the emergence of state capitalism
private dispute resolution
these developments (together with the steady growth of transnational regulation) pose a serious challenge for any theory of modern constitutionalism that considers as its main goal the limitation of state power Slide6
the modern multinational enterprise
1990 onwards is characterized by ‘the adoption of truly global production chains by MNEs and their associates, a marked shift from raw materials and manufacturing toward services based FDI...’— Muchlinski, Multinational Enterprises and the LawSlide7
the return of state capitalism
‘State companies make up 80% of the value of the
stockmarket
in China...’
— The Economist, 21 January 2012 59 of the 61 Chinese companies in the Fortune 500 were SOEs— Phillip C.C. Huang (2012) sovereign wealth funds: by 2013, projected to have $5-10 trillion in assets under management, against 3.9 trillion in 2008— Ramamurti (2011)Slide8
the return of state capitalism
Chinese National Overseas Oil Company, 2012‘State-owned companies from China, the world’s second-largest economy, have been increasingly active in global mergers and acquisitions.… They are also becoming strategic about how to avoid political opposition and structure deals in such a way that they are more likely to be approved.’
— ‘
Cnooc
heeds lessons of failed Unocal bid’ (Financial Times, July 2012)Slide9
privatization of dispute resolution
‘resolution of disputes [in the UK] mainly involving international parties rose by 59% to 5,297 in 2009 from 3,339 disputes in 2007’ (TheCityUK report, 2010)major arbitration venues in Paris, London, New York, Geneva, Dubai, Singapore, Hong Kongdispute resolution for infrastructure mega-projects
investor-state arbitrationSlide10
rethinking constitutionalism
challengesmany states are increasing unable to regulate MNCsblurring of the lines between public and private, company and state
state law/institutions are increasingly marginalized in resolving commercial disputes, developing legal normsSlide11
rethinking constitutionalism
state and non-state actorsstates as regulators of public power
wielders of private power (SOEs)
non-state bodies as:
wielders of private power (e.g., MNEs)regulators of public power Slide12
rethinking constitutionalism
a modest proposalconstitutionalism needs to…
acknowledge the blurring line between
public and private power
rethink ‘state action’ doctrine and apply constitutional norms to private actorsloosen the link between constitutional jurisdiction and territory