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This chapter examines whether and to what extent emerging countries may be able to engage in alternative approaches to trade regulation among themselves and in their relations to developed economies. It shows that liberal orthodoxy is in retrenchment. It documents the reservations that many emerging powers have about the neoliberal approach, and shows the conflict between some trade rules and state-led development strategies (“developmentalism”). In some areas, emerging powers are resisting liberalization pressures by ignoring certain existing rules, refusing to agree to others, and seeking to create alternative orderings with more flexible standards. However, there is not always consensus within key countries about trade and development policy. They have differences on many aspects of liberalization, and there are limits to their capacity to create alternative economic spaces. While resistance from the South and rising protectionism in the North have stalled the liberalization drive, leaving trade law more open to developmentalism for now, the South has not developed the kind of strong ideological consensus and strategic coordination needed to fundamentally alter the trade regime. Countries are guided by pragmatism and divergent national interests.
There are many indications that this world order is undergoing a fundamental transformation both in terms of who are the influential players and in terms of what governance norms and structure they seek to pursue. By way of conclusion, this chapter first summarizes these transformations and offers a mapping of their current repercussions in international economic relations. This chapter then argues that overcoming the current disintegration of international economic relations would require a pluralist world order. Lastly, it outlines the normative parameters of what such an order could comprise.
Rather than a wholesale rejection of neoliberalism, emerging powers are engaging in policy eclecticism: adopting some of the tenets of liberal ordering while rejecting others, applying liberal disciplines asymmetrically in pursuit of strategic self-interest, creating other fora for negotiations and adopting different regulatory priorities. In this chapter, we examine how emerging countries’ discontent with the status quo transpired, and what is left of the liberal ordering in the practice of emerging countries. The first part assesses how developing countries are utilizing WTO law to further their own economic policies, but also denotes how they are strategically breaching some rules and resisting the adoption of new disciplines. The second part analyzes how and why bilateral investment treaties and related institutions are falling out of favor with emerging countries after the initial wave of adoption of these instruments. This chapter highlights the tensions between emerging countries’ developmental policies and IEL, along with the more specific clashes that have transpired in recent decades in their practice of trade and investment law.
Developing economies have been able to make use of the liberal trade and investment regime to support their development strategies without having to adopt the full gamut of neoliberal prescriptions. The status quo is, in many ways, an agreement to disagree, made up of a combination of effective resistance to new rules, de jure and de facto derogations, and strategic noncompliance. The post-2008 period, however, called this truce into question. Transformations of the relationship between development and international economic law stem from the confluence of domestic shifts regarding development economics theory and practice on one hand, and global shifts with respect to the international institutions of economic governance on the other hand.
The nature of developing countries’ resistance to the traditional BITs regime varies. Some states are withdrawing from existing agreements or related systems such as the World Bank’s International Center for the Settlement of Investment Disputes. Others call for changes in the scope of new BITs, and yet others promote radical alternatives. Recent BITs signed by emerging countries, and the Model BITs they have developed, offer a departure from the consensus of the 1990s and early 2000s, from the treaty coverage to the nature of the rights and obligations of host states and investors.The process for defining negotiating positions also has evolved to be more inclusive and more deliberative. This chapter focuses particularly on initiatives for investment regulation in South Africa, Brazil, India and China, and in Africa under the auspices of the SADC.
This chapter focuses on the discourse emanating from developing countries regarding international economic law, particularly as it relates to liberalization and development. It highlights tensions between narratives of cooperation among developing countries and domestic realities of diverging interests and priorities. With respect to cooperation, the larger, middle-income countries and some regional groupings emphasize mutual respect for sovereignty and domestic political economy choices. Investment relations among them are ostensibly in support of domestically designed developmental projects and needs. South–South trade groups seek to unlock regional potential free from the political constraints that often accompany North–South trade relations. However, a closer consideration of the domestic discourse and political economy models of Brazil, China, India and African countries (in the context of regional groupings such as SADC- and African Union-sponsored initiatives) denotes significant divergences in objectives for trade and investment relations, as well as in the degree and means of economic liberalization.
The post-war liberal economic order seems to be crumbling, placing the world at an inflection point. China has emerged as a major force, and other emerging economies seek to play a role in shaping world trade and investment law. Might they band together to mount a wholesale challenge to current rules and institutions? Emerging Powers in the International Economic Order argues that resistance from the Global South and the creation of China-led alternative spaces will have some impact, but no robust alternative vision will emerge. Significant legal innovations from the South depart from the mainstream neoliberal model, but these countries are driven by pragmatism and strategic self-interest and not a common ideological orientation, nor do they intend to fully dismantle the current ordering. In this book, Sonia E. Rolland and David M. Trubek predict a more pluralistic world, which is neither the continued hegemony of neoliberalism nor a full blown alternative to it.
What should we make of Susan Silbey's call for socio-legal scholarship that is both critical and empirical? Do we think the law and society movement can and should develop a critique of the legal order? Can empirical research contribute to such a critique? Does the idea of a “critical sociology of law” make any sense at all?
It is not easy to remember the thoughts and feelings that accompanied the American contingent's participation in the 1986 Bremen conference and which led to this volume. Time has eroded memories. But more than that, there is no single “American” set of thoughts and feelings to recall. Although we shared a desire to explore critical legal thought with colleagues from Germany, we were, in fact, a very heterogeneous group. We came together — momentarily — for the Bremen conference but we approached it from different perspectives, participated from different motives, and went different ways in the years after the publication of the book.