Panel 2: The Constitutionalization of International Trade and Investment Rules Beyond the State or Among States


The second panel moved from convergence and divergence to the fundamental issue of “the Constitutionalization of international trade and investment Rules Beyond the State or Among States.” It was moderated by Professor of Penn State Law School and School of international Affairs Larry Catá Backer. Wei Shen (Professor & Dean, Shandong University Law School) presented his paper “After TPP: China’s BIT’s and FDI Law.” Flora Sapio (Professor, Australian National University; Board Member, FLIA) presented “Private Management and Risk Mitigation Methodologies as the “Unwritten Constitution” in an Era of Anti-Globalization.” Paolo Farah (Professor, West Virginia University Department of Public Administration) presented “Civil Society and National, Bilateral & Multilateral Instruments towards “Non-Trade Concerns” to Stem the Excesses of Globalization.” Bin Li (Professor, Beijing Normal University Law School) presented “Linking Human Rights Norms to International Investment Rules: A Methodological Reflection.” Xiaofu Li (Postdoctoral Researcher, Shanghai University of Finance and Economics) presented “Legal Service of Chinese Market in New Era” at this panel.

Constitutionalization was once considered a “one road” process. The panel revealed the variety in paths toward Constitutionalization and its contextualized manifestation among the leading states and international organizations driving the process. These discussions, of course, occur in the shadow of the Trans-Pacific Partnership as a constitutionalizing framework now abandoned by one of its principal architects. Dean Wei Shen reminded us of the complexities and possibilities beyond TPP Constitutionalization through China’s BITs and FDI law. This road to Constitutionalization may be more profoundly influential than it might have been through even a year ago—what might be the functional difference between a unitary Constitutionalization process represented by TPP, and the aggregation of deeply coordinated bilateral agreements all which together produce the same effect? Paolo Farah’s consideration of civil society, and national, bilateral and multilateral investments toward what was euphemistically called “non-trade concerns” added an important human rights dimension to that trend. Beyond that, Flora Sapio reminded us of the critical importance of unwritten constitutions and the Constitutionalization of the territories framed through international trade. The reference to Jiang Shigong’s germinal work on Chinese and European written and unwritten constitutions here are both echoed and transformed. Bin Li picked up the critical linkage between trade and rights—that is between the rights of capital and that of labor and mass society. His consideration of those linkages between human rights norms and investment rules reminded us that Constitutionalization must be considered in a broader scope than what might be intimated from the limits of the functional differentiation that separates trade from other aspects of human political and economic life. Lastly Xaiofu Li provided an essential link between the structures of Constitutionalization and the provision of services. His consideration of legal service of the Chinese market in the current stage of Chinese historical development provides a reminder that high theory fails unless it can be expressed precisely in operational lives of economic actors.