Download - Private Power Resurgent? Privatization, State Capitalism, and the Future of Modern Constitutionalism
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Victor V. Ramraj
ESADE Barcelona
8 February 2013
Private Power Resurgent?Privatization, State Capitalism, and the Future of Modern Constitutionalism
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backgroundmapping constitutionalism: states, companies, and regulators in a post-national world
assuming… o the orthodox’ liberal constitutional goal
of limiting state powero the transformation of private powero the growth of global regulation
… how do we make sense of state constitutionalism?
this lectureo what are the implications of the
resurgence of transnational private power for domestic constitutionalism?
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background mapping constitutionalism:states, companies, and regulators in a post-national world
assumptions of constitutionalism:o the subordination of private power to
public powero the hierarchical and vertical orientation
of constitutional lawo the nexus between constitutional law
and territory
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background mapping constitutionalism:states, companies, and regulators in a post-national world
claim: constitutionalism needs to…o acknowledge the blurring line between
public and private powero rethink ‘state action’ doctrine and
apply constitutional norms to private actors
o loosen the link between constitutional jurisdiction and territory
book outlineo history of company, constitution (2, 3)o private power resurgent? (4)o global regulation (5)o rethinking constitutionalism (6, 7)
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aim of this talk implications of private/hybrid power for modern constitutionalism
private power resurgent?
o the rise of multinational enterpriseso the emergence of state capitalism o private dispute resolution
these developments (together with the steady growth of transnational regulation) pose a serious challenge for any theory of modern constitutionalism that considers as its main goal the limitation of state power
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the modern multinational enterprise
1990 onwards is characterized by ‘the adoption of truly global production chains by MNEs and their associates, a marked shift from raw materials and manufacturing toward services based FDI...’
— Muchlinski, Multinational Enterprises and the Law
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the return of state capitalism
‘State companies make up 80% of the value of the stockmarket in China...’
— The Economist, 21 January 2012
59 of the 61 Chinese companies in the Fortune 500 were SOEs
— Phillip C.C. Huang (2012)
sovereign wealth funds: by 2013, projected to have $5-10 trillion in assets under management, against 3.9 trillion in 2008
— Ramamurti (2011)
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the return of state capitalismChinese National Overseas Oil Company, 2012
o ‘State-owned companies from China, the world’s second-largest economy, have been increasingly active in global mergers and acquisitions.… They are also becoming strategic about how to avoid political opposition and structure deals in such a way that they are more likely to be approved.’
— ‘Cnooc heeds lessons of failed Unocal bid’ (Financial Times, July 2012)
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privatization of dispute resolution
‘resolution of disputes [in the UK] mainly involving international parties rose by 59% to 5,297 in 2009 from 3,339 disputes in 2007’ (TheCityUK report, 2010)major arbitration venues in Paris, London,
New York, Geneva, Dubai, Singapore, Hong Kong
dispute resolution for infrastructure mega-projects
investor-state arbitration
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rethinking constitutionalism challenges
many states are increasing unable to regulate MNCs
blurring of the lines between public and private, company and state
state law/institutions are increasingly marginalized in resolving commercial disputes, developing legal norms
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rethinking constitutionalism state and non-state actors
states as o regulators of public powero wielders of private power (SOEs)
non-state bodies as:o wielders of private power (e.g., MNEs)o regulators of public power
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rethinking constitutionalism a modest proposal
constitutionalism needs to…
o acknowledge the blurring line between public and private power
o rethink ‘state action’ doctrine and apply constitutional norms to private actors
o loosen the link between constitutional jurisdiction and territory