Constitutionalism and Transnational Governance Failures


This book explores strategies for limiting transnational market failures, governance failures and constitutional failures impeding protection of the universally agreed sustainable development goals like climate change mitigation and access to justice and transnational rule-of-law. Can multilevel democratic and judicial protection of fundamental rights and public goods across frontiers be extended through plurilateral agreements? Can transnational economic and environmental constitutionalism be reconciled with ‘constitutional pluralism’ and with democratic constitutionalism depending on individual and democratic consent of free and equal citizens? Will judicial challenges (e.g. of EU carbon border adjustment measures) and countermeasures lead to further disruption of UN and WTO law?

"This innovative book provides convincing analyses by leading practitioners and academics of multilevel governance of transnational public goods. It advocates the need for stronger involvement of civil society and democratic institutions. It shows why constitutionalism and constitutional economics offer appropriate methodologies for limiting market failures, government failures and constitutional failures. It thereby offers a glimpse of much needed optimism."
Karl-Ernst Brauner, former Deputy Director-General of the World Trade Organization (WTO)
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Ernst-Ulrich Petersmann has worked as legal counsel in Germany’s Ministry of Economic Affairs, GATT and the WTO, and has taught international and European law at the European University Institute at Florence, the Hague and Xiamen Academies of International Law, the EUI Academy of European Law, and numerous universities around the world. His publications include more than 35 books and 380 contributions to books and academic journals.

Armin Steinbach holds the Jean Monnet Chair of EU Law and Economics and the HEC Foundation Chair of Law at the École des hautes études commerciales (HEC) in Paris. He served ten years as a civil servant in German government, including as head of division in the Ministry of Finance and the Ministry of Economic Affairs. He worked at the World Trade Organization (WTO) and as an attorney with the law firm Cleary Gottlieb Steen & Hamilton.

List of Figures and Tables

Notes on Contributors

1 Introduction and Conclusions of This Book
  Ernst-Ulrich Petersmann and Armin Steinbach

2 Constitutional Pluralism, Regulatory Competition and Transnational Governance Failures
  Ernst-Ulrich Petersmann

3 Constitutional Economics and Transnational Governance Failures
  Armin Steinbach

4 Constitutionalising Climate Mitigation Norms in Europe
  Christina Eckes

5 The EU Carbon Border Adjustment Mechanism a Transnational Governance Instrument Whose Time Has Come
  James Flett

6 Common but Differentiated Constitutionalisms: Does ‘Environmental Constitutionalism’ Offer Realistic Policy Options for Improving UN Environmental Law and Governance? US and Latin American Perspectives
  Erin Daly, Maria Antonia Tigre and Natalia Urzola

7 Constitutional, Governance or Market Failures: China, Climate Change and Energy Transition
  Henry Gao and Weihuan Zhou

8 Reforming International Governance: Multilateralism or Polylateralism?
  Pascal Lamy

9 Transnational Governance Failures – a Business Perspective and Roadmap for Future Action
  John W.H. Denton AO

10 U.S. Trade and Multilateralism
  Merit E. Janow

11 Democratic Leadership through Transatlantic Cooperation for Trade and Technology Reforms through the ttc Model?
  Elaine Fahey

12 Can the wto Dispute Settlement System Be Revived? Options for Addressing a Major Governance Failure of the World Trade Organization
  Peter Van den Bossche

13 EU and UN Proposals for Reforming Investor-State Arbitration
  Maria Laura Marceddu

14 Systematic Rivalries and Multilevel Governance in Asia: a Constitutional Perspective
  Julien Chaisse


Academics of legal, economic, and social-science backgrounds; policy-makers and law-makers involved in international negotiations; and teachers of European law, international law, constitutional law, and international relations.
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