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Theorizing Backlash: Supranational Governance and International Investment Law and Arbitration in Comparative Perspective

In: The Journal of World Investment & Trade
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  • 1 University of Connecticut School of LawHartford, CTUnited States
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Abstract

Theoretical understandings of backlash against international investment law and arbitration can benefit from examining analogous dynamics in supranational governance more generally. Two features characterize both systems: the delegation of regulatory power to functional pre-commitment agents beyond the State; and the persistence of constitutional legitimacy in State-level principals. In these circumstances, the agency-cost problem – the danger that agents exaggerate their autonomous power at the expense of their principals – is aggravated in two ways that find surprising support in the literature. Global Administrative Law, for example, appears to rationalize a system of ‘agents without principals’ by bracketing whether any legitimating relationship between the two is possible. Pluralist-constitutional theorists go further, casting pre-commitment agents as representatives of a global constitutional order, thus rationalizing an outright ‘principal-agent inversion’. Either way, a break occurs in the ‘power-legitimacy nexus’ – the necessary congruence between the agent’s power and the legitimacy it autonomously possesses – thus leading to backlash.

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