International Investment Agreements in Colombia: Compatibilities and Incompatibilities in Thirty Years of Constitutional Control

Globalization processes influenced the adoption of the 1991 Colombian Constitution. In this context, the Colombian state intensified the policy of signing international investment agreements to attract foreign investment to the country. Currently, the investor-state arbitration under international investment agreements is going through a moment of reform as a result of profound questioning regarding its lack of capacity to balance the State’s regulatory powers and public policies with the rights and interests of investors. Faced with this panorama, the Colombian Constitutional Court claimed in recent decisions its duty to safeguard the integrity and supremacy of the Constitution, regarding international investment agreements. This paper analyzes the main characteristics of the judicial review carried out by the Constitutional Court of the international investment agreements signed by Colombia since the nineties and the recent departure from its jurisprudence in relation to its scope.

The Peruvian Socio-Economic Constitution in Times of Pandemics

Due to the Covid-19 pandemic, the role of national states is questioned. Orthodox economic policies and the minimum state doctrine is in crisis. In Peru, the economic regime of the 1993 Constitution, adopted under Fujimori's presidency, has not changed significantly because it is backed by factual powers that prevent any amendments. However, the crisis brought about by the pandemic, which initially the neoliberals underestimated, has brought into question the unchangeable nature of the economic regime based on principles of subsidiary state intervention regarding corporations, legal protection of private property, and the unchangeability of private contracts, including state concessions. Against this backdrop, this paper analyses current debates about the design and effects of the Peruvian economic constitutional regime with the aim of making suggestions about the constitutional amendments that are currently needed.

Consequences of the adoption of a constitutional economic regime

Unlike the countries that have assumed the thesis of economic neutrality of the Constitution, in Latin America, mixed economic regimes have been adopted, which combine free-market elements with state intervention in the economy. Not in all countries this has implied an express recognition, but has often occurred as a result of systematic interpretation of constitutional provisions.

The purpose of this presentation will be to inquire about the consequences for the constitutional interpretation of adopting an economic regime in the Constitution. In particular, we will address two problems around this issue: a) the value for the interpretation of an economic regime, as a fundamental decision of the constituent; and, b) the incorporation of elements not present in the text to the constitutional parameter.

For these purposes, we will take as a case study the understanding of the principle of subsidiarity in the Peruvian Constitution.

Economic constitutions and political economy: A renewed agenda for Latin American constitutionalism

This paper analyses recent literature produced in Latin America on the topic of the “economic constitution” from a critical political economy perspective. It aims to map trends, ruptures and tensions in discussions about economic constitutionalism. We uncover the concepts of the economic constitution and market social economy present in prevailing liberal approaches to the study of constitutional law in the region. We also map the premises grounding these concepts and unpack their possible roots in American and European legal traditions. Drawing on recent scholarship on law and political economy (the LPE agenda), this paper also offers reflections on how this theoretical and methodological perspective might expand the spectrum of visibility of what it at stake when we talk about the economic constitution. Our aim is to introduce some initial ideas for a preliminary research agenda for the region based on the LPE perspective.