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The New Bilateralism, International Public Authority and Transformative Constitutionalism

Head of Section:

Armin von Bogdandy

Pedro Villarreal

Appraising International Economic Law Between Europe and Latin America

During the last decades, the legal framework of international economic relations had been analyzed mostly through multilateralism. From the middle of the 1990s onwards, the law of the World Trade Organization was considered the paradigm with which transnational economic relations would be appraised. There had also been trends towards the multilateralization of foreign investment law, such as the setting provided by the International Centre for the Settlement of Investment Disputes, as well as the interpretative integration of bilateral treaties into a multilateral network. In a similar vein, in the field of financial support of economic and social development, such an approach had been adopted in the case of the International Monetary Fund or the International Bank for Reconstruction and Development. And beyond the individual agreements, the idea that international economic law pursued the common, overarching interest of the different states and peoples seemed to gradually prevail. Bilateralism seemed to be more of an old-time relic rather than a model blueprint for the future.

This has been changing dramatically in recent years. The logic of bilateralism is once again on the rise. Not only are global multilateral institutions struggling to evolve, they also face grave threats. The momentum of international economic law is currently on par with a growing bilateral reasoning. Against this backdrop, this research project aims to assess the agreements between the European Union and Latin American countries amidst this scenario.

The analysis of these agreements will take place in light of two guiding research questions of this institute.

Firstly, there is the question of whether and how these agreements create international institutions that can exercise public authority. Here, the role of arbitral tribunals, on the one hand, and of administrative bodies, on the other, come to the fore. The way in which these bodies have been established has been the subject of much discussion recently, especially with regards to CETA and the draft versions of the TTIP. This, in turn, will allow us to examine to what extent the European Union actually follows its own constitutional requirements when devising them.

Secondly, we will examine how these agreements are to be construed through the lens of transformative constitutionalism in Latin America. Previous research at this institute has shown that there is a series of tensions between constitutionalism and international economic law, but also a potential for meaningful synergies. For this purpose, the relationship between international economic law and (national) constitutional law is also a major issue.

The current strand of research is to be pursued within the aegis of agreements between the European Union and Latin American countries. Thus, a comparison with the agreements that the United States of America has concluded with Latin American countries will be a valuable methodological instrument. In particular, this will allow for drawing insights from NAFTA and other trade and/or investment agreements between the United States and Latin American countries, regarding their current configuration, their institutional practice and ongoing debates about their possible modification.

In sum, the goal is to constructively and critically appraise the evolving dimension(s) of international economic law with a clear regional focus, thereby furthering the research agenda of this institute.