Liberalism's Global Mirror: Worldwide Contracting and ‘No Alternative’?

Abstract

This short essay introduces a set of timely critiques of the power shifts in global contracting. The chapters range from investment disputes and carbon trading, commercial arbitration and private military companies to cotton trading and global value chains. In a global context of a ‘turn to market’ through large-scale privatizing of former state-controlled services, outsourcing government functions to private providers and the growing hunger to finance new initiatives through foreign direct investment, contracting has been consolidated as the dominant governance mechanism. Contracts govern investment flows, supply chains, land acquisition, infrastructure development and environmental governance, military activities and commercial arbitration. The triumphant rise of contract prompts urgent questions into the institutional and procedural framework in which the new world of ‘transnational private regulatory governance’ is embedded. Indeed, its promise of a brave new world ‘after the state’ sounds hollow. But, what guidance can we hope to gain from principles such as the Rule of Law or from nation-state bound experiences with ‘deliberative democracy’? As the aftershocks of Brexit continue to rock European political establishments, it becomes quite obvious how the ‘contracting of everything’ might have gone just too far – as long as a critical democratic-political discourse fails to reach out, integrate and empower and as long as today’s political institutional infrastructures continue to grow further and further apart from those under their care and who have suffered the most from the turn to market.

Keywords: Contracts, Privatization, Investment Treaty Arbitration, Transnational Private Regulatory Governance, Turn to Market