In recent years, new judicial interactions are taking place in the global legal arena, when constitutional adjudicators enter into contact with international investment law and its Investor-State Dispute Settlement System. Such interactions have shown how constitutional judges currently deal with problems beyond the borders of the state, where national systems feel pressure not only from international investment regimes but also from different transnational epistemic communities. In this line, this paper explores the new frontier of judicial interactions between national legal systems and international investment law. It thereby argues in favour of an active role by constitutional courts for the construction of regional public standards aligned with the objectives of transformative constitutionalism.
This paper seeks to understand whether the international investment regime (IIR) has become an obstacle to the democratic principle enshrined in Latin America’s Ius Constitutionale Commune (ICCAL). In order to do so, it will shift the focus of analysis from the regulatory conflict between the transnational (IIA) and national (State) scales to the study of bottom-up instances of resistance to the IIR in the region. By shifting the research lens to the bottom (or the local scale), this paper shows that the IIR is opposed by social and popular movements for promoting an extractivist development model in Latin America through the misappropriation of their right to decide upon their own territories. In response, local communities have framed their resistance in democratic terms, demanding the recognition of their constitutional right to participate in all decisions concerning the development and exploitation of their natural resources above the protection of foreign investment.
The international legal order has a contradiction at the core of its operation. There is a differential treatment regarding the protection of property and investments depending on the kind of actors concerned by the taking or limitation of property. Under international investment law, multinational companies cannot easily be expropriated, directly or indirectly, by their host state. When this occurs, multinational companies can claim substantial compensation. By contrast, local communities, which are often themselves adversely affected by multinational companies and international investment law, can be expropriated at the slightest amount of reparation. The broad argument of the paper will be demonstrated by cases taken from foreign direct investment projects in natural resources exploitation in Colombia.
The proliferation of preferential trade and investment agreements in Latin America has led to the multiplication of rules aimed at both lowering barriers to trade and promoting foreign direct investment. At the same time, the concept of Latin American transformative constitutionalism fosters a set of normative goals, namely human rights, democracy and the rule of law. It underscores the transformative role played jointly by the Inter-American Human Rights System and by domestic constitutional law in the region.
The paper focuses on the North American Free Trade Agreement (NAFTA), and its envisaged successor, the United States-Mexico-Canada Agreement (USMCA), in order to examine how they have, and might further shape the Mexican legal system. An instrument-focused perspective will allow for a deeper analysis of the relationship between the implementation of preferential trade and investment agreements and the pursuit of the normative goals of transformative constitutionalism.