The NeoLiberal Turn in Regional Trade Agreements

Abstract: This Article makes two primary arguments. First that the increased resort to bilateral and regional trade agreements has taken a neoliberal turn. As such bilateral and regional trade agreements are now a primary means through which greater investor protections, commodification of social services, guaranteed rights of investor access to investment opportunities, privatization of public service goods, and generally the diminution of sovereign control are being realized. These trade agreements make the foregoing goals possible not just in developing countries, but in industrialized economies as well. I show that these agreements provide business interests with opportunities to exercise concerted pressure to influence the adoption of neoliberal economic policies in both developed economies and developing economies. Second, this Article argues that bilateralism and regionalism in trade are contemporary fads that are spreading neoliberal economic ideals in the periphery of the global trading system. In other words, emulation by small developing countries of neoliberal economic policies in developed countries is a significant driver of economic reform. Developing countries adopt neoliberalism not simply because it is imposed, as many accounts suggest. Rather, neoliberalism is also voluntarily adopted for a variety of reasons: (i) because there has been a convergence in the thinking of policymakers and academic thinkers in developing and developed countries in part as a result of socialization through education or professional associations and contacts; (ii) as a result of persuasion that neoliberal reforms are important preconditions for goals such as increased economic growth or the efficiency of public sector institutions, developing country officials have adopted them; (iii) public officials in developing countries are strategically adopting neoliberal reforms since they are regarded as a signaling device that their country is \u27safe\u27 for investment or because bilateral and regional trade agreements come with budget support that is otherwise unavailable to these developing country officials in their home country; (iv) officials in developing countries are passive imitators who in the absence of solid evidence as to the efficacy of neoliberal ideals on their own account or in relation to alternative reform ideas are rationally bounded actors who find it impractical to assess the efficacy of neoliberal ideals or their alternatives. In short, this Article argues that the increased number of regional and bilateral trade agreements represents an important opportunity for the further diffusion of neoliberal economic ideals, an insight often missing in leading accounts that have emphasized how this trend conforms or departs from the norms of the World Trade Organization. This paper does so using a constructivist account of the circumstances under which neoliberalism arises in the turn towards regionalism and bilateralism. It shows how ideas about market governance and the institutions and experts that generate and perpetuate these ideas impose an incentive structure within which choices in favor of neoliberalism are more than less likely to be exercised

Beyond Samuel Moyn\u27s Countermajoritarian Difficulty as a Model of Global Judicial Review

This Article responds to Samuel Moyn\u27s critique of judicial review and his endorsement of judicial modesty as an alternative. By invoking the countermajoritarian difficulty, Moyn argues that judicial overreach has become an unwelcome global phenomenon that should be reexamined and curbed. I reject Moyn\u27s claim that this kind of judicial modesty should define the role of courts for all time. By applying the countermajoritarian difficulty beyond its United States origins, Moyn assumes it is an unproblematic baseline against which to measure the role of courts globally. Moyn\u27s vision says nothing about when it would be appropriate for courts to rule against legislative majorities. This view of judicial modesty is defied in constitutions such as those of South Africa and Kenya, which explicitly provide for their manner of interpretation and empower courts to develop the law. In the often revolutionary conditions of new African democracies, the functions expected of judicial review have a significant role both in constituting the new order as well as in disabling the continuation of the old order

Saving the Serengeti: Africa\u27s New International Judicial Environmentalism

This Article analyzes recent environmental law decisions of Africa\u27s fledgling international courts. In 2014, for example, the East African Court of Justice stopped the government of Tanzania from building a road across Serengeti National Park because of its potential adverse environmental impacts. Decisions like these have inaugurated a new era of enhanced environmental judicial protection in Africa. This expansion into environmental law decision-making by Africa\u27s international trade courts contrasts with other international courts that are designed to specialize on one issue area such as human rights or international trade, but not both. By contrast, Africa\u27s international courts are simultaneously pushing the boundaries of judicial enforcement not only of international environmental law, but also of international human rights. Three major developments account for the turn to and expansion towards international judicial environmentalism: First, the decisions of African governments to pursue mega­development projects such as the Serengeti superhighway, large extractive industry operations, or hydro-electric dams without regard to the environment or the interests of local populations. Second, the channeling of resistance against these mega-development projects through international courts by alliances of those directly affected by these mega-development projects at the grassroots level together with global environmental movements. Third, the repurposing of these international courts to begin enforcing environmental norms included in regional trade and human rights agreements as a result of the opportunity provided by the filing of environmental cases. The fact that NGOs and individuals have standing to bring cases to Africa\u27s international courts and governments remain committed to pursuing mega-development projects strongly suggests that the trend towards consolidating international judicial environmentalism may continue. Similar cases filed in domestic courts show the continuity and complementarity between national and international courts in environmental law cases. Ultimately, this Article observes that to the extent the cases in Africa\u27s international courts are filed only against States leaves a huge accountability gap. Private actors responsible for the same kind of environmental damage are not amenable to suit in Africa\u27s fledgling international courts. This accountability gap far private actors continues an unfortunate legacy that has degraded the environment in manyy third world countries, including those in Africa