Processes of Global (De-)Constitutionalization in International Investment Law as Multi-Actor Practices of Narration
Funded by the Deutsche Forschungsgemeinschaft (DFG)
Members of the Project
Scope of the Project
The international normative framework governing the protection of foreign investments has—for a variety of reasons—emerged more recently as a central normative “battleground” for competing narratives of global constitutionalization. Of particular interest are the design as well as practice of investor-state dispute settlement proceedings. There appears to be an increasingly recognized value for all of the various different kinds of actors interested in the international investment regime to listen to the available narratives and in particular to create new ones, thereby first and foremost also employing the language of constitutionalism.
Against this background and in an attempt to assess these phenomena, the research project intends to discuss and test the benefits of applying an empirical approach based on a narrative perspective to the multi-faceted issue of constitutionalization in the realm of international investment law. The project is guided by the assumption that, first, global constitutional law is created through the relevant actors’ social practices as observed in the presentation of related narratives and/or subscription to certain narrations. And second, the transnational normative regime dealing with foreign investments creates another layer of global constitutional law in its own narratives.
The research project is based on the proposition that adopting a narrative approach, in particular relying on the configurational and thus constitutive dimension of storytelling, can assist in the necessary search for an appropriate solution to address and overcome the main challenges that the idea and concept of a constitutionalization of international law is currently faced with. Adopting a narrative perspective largely relieves the need of developing a predefined, abstract, and theoretical concept of global constitutionalism—as a broader consensus is difficult to identify in the scientific community. However, by initially relying on the identification and assessment of constitutional vocabulary in relevant interactions, such as narratives of the relevant actors, a more integrative conception of the idea can emerge.
Furthermore, in the same way as the present empirical approach to determine constitutional normativity connects the existence of an international constitutional norm and its reference in social practices, it also bridges and reconciles the existing so-called “mindset” and the “doctrine” perspectives on global constitutionalism. The approach is inspired and guided by the understanding that the term constitutionalization is not to be regarded – from a kind of bifocal perspective – as describing “legal processes in the real world of law” on one hand and as labelling “the accompanying discourses” on the other hand. Rather, taking recourse to the configurational and constitutive dimension of narrations, it should be considered as describing legal processes in the real world of law constituted, and thus initiated and sustained, by social practices such as narratives and discourses of the relevant actors. Finally, we argue that the empirical approach based on a narrative perspective can be regarded as an objective method to distinguish between possible constitutional law and norms of a non-constitutional character in the international legal order. Thus, it also offers a suitable solution to address the fundamental rule of recognition problem of global constitutionalism.
- Karsten Nowrot/Emily Sipiorski, Competing Narratives of Global (De-)Constitutionalization in International Investment Law: Identifying Narrators and the Stories They Tell, in: Archiv des Völkerrechts 55 (2017), 265 - 302.
- Karsten Nowrot/Emily Sipiorski, Approaches to Arbitrator Intimidation in Investor-State Dispute Settlement: Impartiality, Independence, and the Challenge of Regulating Behavior, in: The Law and Practice of International Courts and Tribunals 17 (2018), 178-196.
- Karsten Nowrot, The Other Side of Rights in the Processes of Constitutionalizing International Investment Law: Addressing Investors’ Obligations as a New Regulatory Experiment, Rechtswissenschaftliche Beiträge der Hamburger Sozialökonomie, No. 21, 41 pages, Hamburg 2018.
- Karsten Nowrot/Emily Sipiorski, Arbitrator Intimidation and the Rule of Law: Aspects of Constitutionalization in International Investment Law, Rechtswissenschaftliche Beiträge der Hamburger Sozialökonomie, No. 22, 27 pages, Hamburg 2019.
- Karsten Nowrot/Emily Sipiorski, Constitutionalizing the 1958 New York Convention from Below by Other Means?: The Relevance of Respondent States’ Domestic Constitutional Law in the Enforcement of Investment Awards, in: Fach Gómez, Katia/Mercedes López Rodríguez, Ana (Hrsg.), 60 Years of the New York Convention: Key Issues and Future Challenges, Wolters Kluwer, Alphen aan den Rijn 2019, S. 153 - 167.
- Emily Sipiorski, Good Faith in International Investment Arbitration, Oxford International Arbitration Series, Oxford University Press (forthcoming February 2019).