Theorizing Backlash: Supranational Governance and International Investment Law and Arbitration in Comparative Perspective

Abstract

A revised and updated version of this paper will appear in a forthcoming special issue of the Journal of World Investment and Trade. This paper argues that theoretical understandings of backlash against international investment law and arbitration can benefit from examining analogous dynamics in supranational governance more generally. Two features characterize both systems: the delegation of regulatory power to functional pre-commitment agents beyond the State; and the persistence of constitutional legitimacy in State-level principals. In these circumstances, the agency-cost problem — the danger that agents exaggerate their autonomous power at the expense of their principals — is aggravated in two ways that find surprising support in the literature. Global Administrative Law, for example, appears to rationalize a system of ‘agents without principals’ by bracketing whether any legitimating relationship between the two is possible. Pluralist-constitutional theorists go further, casting pre-commitment agents as representatives of a global constitutional order, thus rationalizing an outright ‘principal-agent inversion’. Either way, a break occurs in the ‘power-legitimacy nexus’ — the necessary congruence between the agent’s power and the legitimacy it autonomously possesses — thus leading to backlash.

Keywords: agency-cost problem, agents without principals, international investment law, investor-State dispute settlement, power-legitimacy nexus, pre-commitment agent, principal-agent inversion, supranational governance

JEL Classification: F02, F13, F15, F21, F42, F55