Description

How have apex courts responded to shrinking policy space as a consequence of international treaties that protect the contract, property, and due process rights of foreign investors? Investment treaties have prompted allegations that they are not constitutionally compliant because they violate either constitutional procedures or constitutional rights. Are apex courts interested in such arguments in defence of constitutional standards or do they simply get out of the way? Drawing upon a new empirical study, the lecture catalogues how apex courts in some locales have responded to these challenges, both in the Global North and in selected Global South courts. If high courts in the North have found a way of smoothing a path to constitutional compatibility, those in the South have offered a greater spectrum of responses to investment law’s constraints, ranging from deference to modest defiance. The lecture concludes with a normative argument about why courts are duty bound to closely scrutinize treaties for their constitutional compatibility, rather than simply yielding, as some advocate, to the exigencies of international economic law.