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This chapter discusses how WTO constitutionalization models emerged from international economic law, and argues that the field is characterized by a number of tendencies which fuelled speculation about WTO constitutionalization. These tendencies include an increasing conflation of institutions with constitutions; integration of world markets through globalization; a consensus on the benefits of liberalization; an expansion of law to take in new forms of regulation; and an anxiety about how to define and limit the field of economic law and its role in transforming international order.

Corporations have limited responsibilities in international law but enjoy far-reaching rights and privileges. International legal debates often conceive of this issue as a problem of business accountability for human rights violations. Conceptually, the issue of corporations in international law has focused on whether or not they are, or ought to be, recognized as ‘subjects’ of responsibility in international law and on the adequate conceptual analogy to the corporation. The introduction presents an alternative way of thinking about the role of international law and its relevance to the private business corporation. It traces the emergence of the contemporary legal architecture for corporations in international law and shows how modern international law constitutes a framework within which businesses and governments allocate resources and responsibilities—a framework that began to operate as early as the late-nineteenth century and continued throughout the twentieth century.

This chapter discusses changes in the classical public–private divide under the new conditions of globalization, new technologies, and public–private cooperation. General public law and the public–private divide have been crucial in the evolution of rule-of-law regimes and in the development of welfare and regulatory states. It is argued that vital developments within the state, and by increased internationalization and globalization, have contributed significantly to changes in the classical forms of public law. Some examples are further analysed: the expansion of markets and public regulation has led to closer and more intensive interactions between the corresponding spheres of law. Markets are increasingly used as mechanisms of regulation. The expansion of international and European economic law has been vital in the changing interface of public and private law. The regulation of the Internet and of new biotechnologies offers further examples of new forms of public law and changes in the public-private divide.

Under the umbrella of international economic law, Chapter 8 begins in Section 8.1 by examining the relationship between the concept of international legal personality and positive international norms pertaining to ‘State contracts’. Section 8.2 then studies the field of international investment law, which (unlike, for instance, international trade law) is characterized by a considerable degree of involvement of the individual investor. Section 8.3 goes on to discuss some pertinent aspects of EU law in relation to the international legal personality of individuals. EU law is not commonly regarded as a part of international (economic) law, but rather as ‘a new legal order’ of its own. EU law is nevertheless included here as the point is to challenge the popular conception of EU law as separate from the international legal system, and to illustrate that this notion rests, at least in part, on the orthodox ‘States-only’ conception of international legal personality.

The issues of reciprocity and common interest — or community interest — mark two demarcation points in the oeuvre of Bruno Simma. Some parts of international economic law, particularly the WTO legal system, arguably have a number of characteristics that go beyond the idea of strict reciprocity and that might well reflect a legal structure, which Simma later on identified as one designed to serve a common interest. This chapter explores further the concepts and structures of WTO law in view of reciprocity and community interest. The effort may be particularly worthwhile when we take a different view on international trade law. Beyond its strange issues and cases, its historical roots can be found in Article 55 of the UN Charter and can be seen as a cornerstone of the Charter's perception of the relevance of economic and social conditions for world peace. In addition, it is a major element in securing the economic and social development of nations and peoples around the world.

This chapter examines whether economic, social, and cultural rights are taken into account when arbitration or adjudicating bodies (panels or tribunals) attempt to solve disputes arising under international economic law (IEL). It first discusses the legal and policy framework for addressing issues relating to IEL and human rights. It then analyses specific provisions of World Trade Organization (WTO) treaties, free trade agreements (FTAs), and bilateral investment treaties (BITs) and how human rights can be introduced by international tribunals when resolving disputes. The chapter also considers some notable cases from international investment disputes that illustrate principles such as how to justify measures by their relationship to legitimate policy objectives, the essence of the proportionality test, and what is legitimately included in the fair and equitable treatment standard under international investment law. It also determines whether states have a duty to give more weight to their human rights obligations when agreements under IEL are negotiated, implemented, and enforced.

Intertwined markets and disaggregated means of production give rise to new types of economic entities. Organized along global value chains, the relevance of state borders for the legal norms that apply to them are often reduced and new governance responses have emerged. Modern retail payment systems are an example of cross-border, network structures requiring both private (contractual) and public (regulatory) governance. The two main legal responses—private international law and harmonization—fail to deal effectively with coherence. Based in a principled regulatory approach which relies on public reason, megaregional trade and investment agreements such as TPP provide a route to effective transnational governance of global and regional value chains in this area.

These new orientations in international economic law and the EU’s external economic relations are analysed in the following chapters of this volume. This chapter discusses mega-regional free trade agreements and other plurilateral trade agreements as ‘new trends’ in international economic law (IEL). CETA, TTIP, and TiSA use ‘legal fragmentation’, ‘regulatory competition’, and ‘methodological pluralism’ as instruments for WTO-consistent, piecemeal reforms of the world trading and investment system. The competing conceptions of IEL result from diverse conceptions of ‘principles of justice’ and diverse ‘legal methods’ for further developing IEL. CETA, TTIP, and TiSA are likely to enhance productivity, competition, and consumer welfare. By disregarding the EU’s ‘cosmopolitan foreign policy mandate’ to act as ‘protector of citizens’, CETA and TTIP risk undermining fundamental rights, democratic accountability, and judicial remedies in the EU. The less the WTO succeeds in liberalizing world trade and regulating ‘market failures’, the more important becomes the policy option of plurilateral agreements, which could ultimately replace ‘WTO 1994’ by a new ‘WTO 2020’ based on a ‘merger’ of mega-regional and plurilateral agreements.

The Trans-Pacific Partnership (TPP) includes many and varied administrative law obligations for the parties’ domestic regulation and administration which form an integral part of its megaregulation project. These treaty requirements for regulatory procedures operate as instruments of transnational remote control by empowering private actors to use the procedures to pursue and defend their interests in other states. To create this remote control, TPP uses rules and structures for regulatory decision-making that reflect a US understanding of administrative law and its implicit regulatory capitalist model for the structuring of state–market relations. To explain how remote control works, we synthesize McNollgast’s conception of regulatory procedures in the purely domestic context as instruments of political control and Putnam’s theorization of international treaty negotiations as a two-level game. We show how procedural obligations in TPP are designed to stack the deck to favor certain interests—business firms rather than environmental and social interests—and why treaty negotiators may find it easier to agree on procedures than on substantive commitments.

This chapter considers how the received wisdom within disciplinary boundaries between labour law, welfare law, and immigration law, as well as most progressive critiques of those doctrines and disciplines, unwittingly reflect and reinforce discourses which legitimate the economic status quo, including the legal and institutional structures that create and sustain poverty. It seeks to draw threads between fields of inquiry and practice that progressives, especially labour and welfare lawyers, must understand as intimately linked. It argues that any progressive transformation of labour law requires intense engagement with welfare law. With notable exceptions, labour law still largely situates questions of power and income distribution within the framework of labour markets. Its perspective on work remains limited to wage labour. And it still privileges collective bargaining by unions within a nation-state as the primary site of progressive initiatives for economic and social redistribution.

This chapter describes and problematises the role of due diligence norms in international anti-corruption and money laundering law. It analyses the international legal framework against the abuse of trust or power for private gain—corruption—and finds that states are obliged to prevent the perpetration or facilitation of such conduct by non-state actors. The chapter demonstrates that, to this end, states must ‘responsibilise’ legal entities and require supervision by those entities of other non-state actors. Both horizontal (state-to-state) and traversal (state-to-business) anti-corruption due diligence obligations are calibrated by discretions and notions of risk. The chapter points out that the international economic crime standards seem to employ a ‘new’ approach to governance or—more problematically—to diffuse ‘new’ forms of ‘penality’ or global governmentality.

The conclusion challenges the prevailing narrative on the 1990s as the watershed period during which a new sensibility emerged towards the responsibility of private business corporations as subjects of international legal responsibility. While the prevailing account focuses on the private business corporation as a subject of responsibility, it ignores alternative conceptual frameworks that were central to debates over business regulation in international law such as businesses as participants, monopolies, or multinational corporations (MNCs). Furthermore, this narrative is frequently informed by an implicit historical account on international law’s limited influence (or none at all) on the regulation of private business corporations until the 1990s. Conversely, the conclusion draws on the findings of this book to problematize this narrative of marginality and demonstrates how the supposed marginality of the business enterprise in international law, ingrained as it is in the commonly accepted narrative, is a conceptual bias that facilitated (rather than prevented) the emergence and reach of the private business corporation and legitimized the elements in the international legal order that enabled it to thrive.

Chapter 10 summarizes the main conclusion of this book that the objects traded within emissions trading schemes—namely, carbon units—are subject to the disciplines of international economic law in a series of complex and asymmetrical ways. The significance of this conclusion is underlined by the volume and extent of prima facie inconsistencies exhibited by emissions trading schemes with international economic law and identified in this book. While the evidence available and justifications in respect of some of these inconsistencies suggests that they might be saved by certain public policy-related exceptions in international economic law, it is equally apparent that many would not be shielded. Chapter 10 also passes comment on the potential means by which jurisdictions might inoculate their emissions trading schemes from the reach of international economic law, such as by insulating schemes from external transactions, denuding carbon units of proprietary status, and framing international trade in carbon units as a matter of mutual recognition of respective jurisdictions’ technical regulations or standards under international economic law.

How China reacts to a potential US-led TPP or the current TPP11, and whether a China-centric ordering is compatible with a US-led one, will be determined by both domestic and geopolitical factors. These include China’s domestic economic structure and reform agenda, as well as China’s relative power vis-à-vis the United States and the strategic interaction between the two countries. Due to a variety of domestic constraints—such as the dominant role of SOEs and a reliance on industrial policy to move up GVCs—TPP or TPP11 is unlikely to make China substantially deepen its domestic economic reform or converge toward a hard law-based liberal economic ordering. Nevertheless, China’s perception of the potential negative economic and geo-political impacts of a US-led TPP has strengthened its will and efforts to establish a China-centric regional ordering: China has accelerated both its RCEP negotiations and the implementation of its ambitious Belt and Road Initiative. A China-centric ordering will exhibit mixed features of both market and statist components.