Victor V. Ramraj ESADE Barcelona 8 February 2013 Private Power Resurgent? Privatization, State Capitalism, and the Future of Modern Constitutionalism Private Power Resurgent? Privatization, State Capitalism, and the Future of Modern Constitutionalism

background mapping constitutionalism: states, companies, and regulators in a post-national world assuming… o the orthodox’ liberal constitutional goal of limiting state power o the transformation of private power o the growth of global regulation … how do we make sense of state constitutionalism? this lecture o what are the implications of the resurgence of transnational private power for domestic constitutionalism?

background mapping constitutionalism: states, companies, and regulators in a post-national world assumptions of constitutionalism: o the subordination of private power to public power o the hierarchical and vertical orientation of constitutional law o the nexus between constitutional law and territory

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 power o rethink ‘state action’ doctrine and apply constitutional norms to private actors o loosen the link between constitutional jurisdiction and territory book outline o history of company, constitution (2, 3) o private power resurgent? (4) o global regulation (5) o rethinking constitutionalism (6, 7)

aim of this talk implications of private/hybrid power for modern constitutionalism private power resurgent? o the rise of multinational enterprises o 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

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

the return of state capitalism ‘State companies make up 80% of the value of the stockmarket in China...’ — The Economist, 21 January 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)

the return of state capitalism Chinese 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)

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

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

rethinking constitutionalism state and non-state actors states as o regulators of public power o wielders of private power (SOEs) non-state bodies as: o wielders of private power (e.g., MNEs) o regulators of public power

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