Constitutional Evasions: Encounters Between Comparative Constitutional Law and International Investment Law

This paper is an inquiry into the relationship between comparative constitutional law and international investment law. If the former aims to chart both convergence and divergence in constitutional orders, the latter aims to harmonize constitution-like protections for foreign investors that have the effect of ceding policy space over a wide range of economic subjects. The paper draws upon an empirical examination of selected apex court responses, principally of capital-importing states, to the challenge of shrinking constitutional space due to investment law strictures. Five differing categories of responses to the threat of constitutional dispossession are identified, from complicity to deference, and pragmatism to soft resistance. What explains these rather modest responses? Are apex courts channelling the preferences of executive branches? Are they in denial about these potential conflicts? Or are apex courts judges inhibited about what they can say?