Sign up. More Contact us Publish with us Subscribe. Print Save Cite Email Share. Show Less You do not have access to this content. International investment law is one of the most dynamic fields of international law, and yet it has been criticised for failing to strike a fair balance between private and public interests. International investment law as a field of international law Chapter 2. The migration of constitutional ideas to international investment law and arbitration Chapter 3. A history of success? Proportionality in international investment law and arbitration Chapter 4.
Reasonableness in investment treaty arbitration Chapter 5. Standards of review in investment treaty arbitration Chapter 6. Proportionality, reasonableness and standards of review in investment treaty arbitration Conclusions Bibliography Index. You do not have access to this content. Extract Can the use of constitutional analogies contribute to the current debate on the legitimacy of investor—state arbitration?
Subscriber Login. Forgot your password? Edward Elgar Publishing. Powered by PubFactory. Achieving total constitutional independence while respecting constitu- tional continuity seemed impossible. The doctrine of parliamentary 73 V. Jackson and M. Dorsen et al.
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What is of salience is how Oliver frames his subject of inquiry and his method of analysis. Oliver seeks to untangle and explain differences and similarities, observed and unobserved, between three constitutional orders, in order to interrogate basic assumptions about the relationship between parliamentary sover- eignty, constitutional independence, and legality.
Oliver engages in the static comparison of different legal orders, examining them as separate legal entities in isolation from one another. What Oliver is not interested in, and hence does not study, is whether these legal orders interact and influence one another, if at all. Thus, Oliver in effect describes four related but separate sets of conversations — amongst respective constitutional actors within Australia, Canada, and New Zealand over how to reconcile constitutional continuity with constitutional independence and amongst British legal actors over the same question.
What Oliver chose to not explore is the additional question of how constitutional ideas regarding these fundamental constitutional questions migrated across the three former colonies. Now let us move to the second body of work. One obvious mechanism is constitutional theory itself, which sets a benchmark against which the particular decisions of specific common law jurisdictions can be assessed.
Indeed, given that jurisdictions are engaged in a shared constitutional project, there is no reason against the citation of foreign cases. Allan is clearly receptive to the migration of constitutional ideas. But since Constitutional Justice is primarily a work of normative constitutional theory, Allan does not squarely address this question.
So where does this leave us? The migration of constitutional ideas still remains relatively unexplored in the vast and growing literature on comparative constitutional law. Detailed case studies of common issues across a small set of legal orders have consisted of static comparisons of different constitutional systems, but have not examined how and why constitutional ideas have migrated across systems.
Normative constitu- tional theorists have set out universal accounts of liberal democratic constitutionalism, have called for those accounts to inform constitutional interpretation across jurisdictions, and are open to comparative engagement. They have not, however, examined how the migration of constitutional ideas figures into their narratives of convergence. To be sure, the existing literature addresses important questions. But the premise of this volume is that the field should go in new directions, and that the migration of constitutional ideas is desperately in need of serious academic attention.
Nelken and J. Feest eds. Legrand, The Same and the Different in P. Legrand and R. Munday eds. In his view, comparative lawyers should:. They must make themselves into difference engineers. But as James Q. Whitman perceptively notes, it is possible to separate the study of transplants from the call for convergence. As he writes in direct response to Legrand:. Zweigert and H.
Weir translator 3rd rev.
Chapter 2: The migration of constitutional ideas to international investment law and arbitration
Indeed, they undergo transcultural change all the time. But the shortcoming of a single metaphor is not a good reason to abandon metaphors altogether. Nelken, Comparatists and Transferability in P. Metaphors highlight some features of phenomena, while casting shadow on others. So the challenge is to locate the right metaphor.
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The dominance of this metaphor was confirmed by the devotion of a symposium to constitu- tional borrowing in the leading journal in the field, the International Journal of Constitutional Law. Scheppele catalogues the deficiencies of constitutional borrowing, each of which is redressed by the metaphor of migration.
Ideas which are borrowed carry no implicit promise of return, although the idea of borrowing seems to require it. Migration does not carry the implication that constitutional ideas will necessarily be returned by the recipient jurisdiction. Moreover, it grants equal prominence to the fact of movement of constitutional ideas across legal orders, as well as to the actual ideas which are migrating. Friedman and C. Epstein and J. Knight, Constitutional Borrowing and Nonborrowing, p. Hasebe, Constitutional Borrowing and Political Theory, p. Osiatynski, Paradoxes of Constitutional Borrowing, p.
For other related discussions see V. Eskridge, United States: Lawrence v. In contrast, the migration of constitutional ideas does not necessarily connote control on the part of the originating constitutional order. Indeed, the migration of constitutional ideas may occur without the knowledge or permission of the source jurisdiction. Migration is often covert and illicit.
But the metaphor of migration explicitly opens the door to a wider range of uses for constitutional ideas, and for the outcomes of the process of comparative engagement.
Sujit Choudhry (ed.), The Migration of Constitutional Ideas - PhilPapers
Although the metaphor of borrowing does not preclude the possibility of adaptation and adjustment, the metaphor of migration is more amenable to this turn of events. Cons- titutional ideas may change in the process of migration. It is understood that the process of migrating changes that which migrates. Indeed, given the centrality of migration to the contemporary practice of constitutionalism, the truly interesting question is why and how such changes take place.
Finally, while borrowing shares the functionalist impulse of legal transplants, the migration of constitutional ideas encompasses a much broader range of relationships between the recipient jurisdiction and constitutional ideas. Neil Walker aptly summarizes the benefits of the migration metaphor in his contribution to this volume: Migration. Rather, as we shall develop in due course, it refers to all movements across systems, overt or covert, episodic or incremental, planned or evolved, initiated by giver or receiver, accepted or rejected, adopted or adapted, concerned with substantive doctrine or with institutional design or some more abstract or intangible constitutional sensibility or ethos.
Now to be sure, transplants or borrowings as traditionally understood are possible. Indeed, it is possible to take both constitutional difference and comparative engagement seriously. Difference is an inherently relative concept — one constitution is only unique by comparison with other constitutions that lack some characteristic which this constitution possesses. The Notwithstanding Clause in the Canadian Charter of Rights and Freedoms, for example, was a unique innovation in constitutional design because other bills of rights did not contain such a provision.
Compara- tive engagement, far from necessarily directing courts and legal actors toward constitutional convergence, can instead reinforce moments of constitutional difference.
First, comparative materials are engaged to identify the assumptions embedded in positive legal materials. But in the process of articulating the assumptions underlying foreign jurisprudence, a court will inevitably uncover its own. By asking why foreign courts have reasoned a certain way, a court engaged in process of discursive justification asks itself why it reasons the way it does. And so the next move is to engage in a process of justification. If the assumptions are different, the question becomes S.
See V. As Ernie Young suggests, however, the actual reasoning in Roper is far from a model of comparative engagement: E. Comparative engagement highlights the contingency of legal and constitutional order, and opens for discussion and contestation those characteristics which had remained invisible to domestic eyes. Conversely, if the assumptions are similar, one can still ask whether those assumptions ought to be shared. The types of reasons offered will vary depending on the culture of constitutional argument in the jurisdiction of the interpreting court, and may encompass constitu- tional text, structure, history, precedent, and normative considerations.
Finally, the court is faced with a set of interpretive choices. A court may be able to justify the similarity with, or the difference between, the assumptions underlying its own constitutional order and a foreign one. Comparative engagement, then, leads to a heightened sense of legal awareness through interpretive clarification and confrontation.
But the identification and attempted justification of constitutional assumptions through comparison may lead a court to challenge and reject those assumptions and search for new ones. In cases of constitutional similarity, a court may reject shared assumptions and may strike out in a new direction based on radically different premises. In cases of constitutional difference, a court may determine a difference to be unfounded, and may rely on comparative jurisprudence as the engine of legal change. Frank Michelman has recently applied the dialogical method in an insightful comparison of the US and South African jurisprudence on affirmative action on the basis of race.
US constitutional doctrine treats racial affirmative action as deserving of the highest constitutional scrutiny, and has rendered it unconstitutional in all but a narrow range of circumstances. The benign motivation underlying such racial classifications does not operate to save them. South African constitu- tional doctrine, by contrast, would appear to be open to treating racial affirmative action with considerably less suspicion, relying precisely on a notion of objective dignity which replicates the distinction between benign and invidious classifications which the US courts have rejected.
Might American jurists do well to take heed of the South African way and follow suit? For another example of the application of the dialogical method of interpretation, see G. The Court may itself be heading toward this understanding. Consider the following passage from Roper: These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity.
Not the least of reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom. The argument made by the majority was that the taking of a life of a juvenile is a disproportionate punishment for a capital offence because juveniles have diminished culpability owing to their vulnerability to influence and their susceptibility to immature and irresponsible behaviour.
Until Roper, US constitutional law had reached the opposite conclusion. But comparative law opened up US legal doctrine to an alternative way of understanding US constitutional commitments — by Ibid. This volume: exploring the migration of constitutional ideas The dialogical approach to the use of comparative materials is but one way of understanding the migration of constitutional ideas. The chapters in this volume tackle this phenomenon from a diverse range of methodo- logical perspectives.
Moreover, they draw on a rich range of constitutional practice. Together, the chapters fill a major gap in the critical literature. The focus on case studies was a conscious choice. A major impetus for the volume is that the practice of the migration of constitutional ideas has outpaced the theoretical frameworks through which scholars have hitherto approached the study of comparative constitutionalism.
To recast our theories of comparative constitutional law, we must therefore turn to a detailed study of constitutional practice. As a consequence, many of the chapters draw on detailed examples from a wide variety of jurisdictions e. A richer account of constitutional practice will serve as fodder for the theoretical reconceptualization of the discipline. The volume is divided into four parts: The methodology of compar- ativism; Convergence toward a liberal democratic model? The first part of the volume will address basic issues such as what the point of comparative inquiry is, and how that enterprise is to be undertaken, by bringing to bear the differing disciplinary perspectives of comparative law and comparative politics.
These two disciplines take different approaches and offer different conceptual tools to explain the migration of constitutional ideas. For students of comparative politics, as Ran Hirschl argues On the blurred methodological matrix of comparative constitutional law , the goal of academic inquiry is both to describe observed patterns of constitutional phenomena and to explain their causes. Against this benchmark, Hirschl carefully reviews the legal literature on comparative constitutionalism, suggesting that it comes up short. The principal difficulty is that legal studies of comparative constitutionalism lack methodological rigour because they have failed to deploy the social scientific research methods of controlled comparison, research design, and case selection that are necessary to draw causal inferences.
By contrast, Hirschl argues, scholars of comparative politics have successfully used a variety of case selection methodologies to explain the political origins and consequences of the recent spread of written constitutions and bills of rights. Hirschl concludes by suggesting that inference-oriented principles of case selection may likewise help scholars to explain why, when and how the migration of constitutional ideas occurs.
Mark Tushnet Some reflections on method in comparative constitu- tional law provides a striking contrast to Hirschl. Whereas Hirschl argues that legal studies of comparative constitutionalism have been methodologically deficient, Tushnet defends the existing literature and the methods it has employed, and situates the academic study of comparative constitutional law firmly within the mainstream of legal scholarship.
Tushnet observes that the academic study of comparative constitutional law has not been methodologically innovative because it has relied on a series of well-established methods used in the study of comparative law. Tushnet suggests that despite its lack of methodological originality, the existing literature has nonetheless yielded intellectual dividends. There are three principal comparative law methodologies: normative universalism, functionalism, and contextualism. He then instructively distinguishes simple contextualism from expressivism.
For each example, he explains what useful insights these studies have revealed. Rather than arguing for the superiority of one methodology over another, he suggests that each approach has its benefits and limitations. Her target, however, is American exceptionalism — i. American exceptionalism flows from the premise that constitutional judicial review is undemocratic and illegitimate, and views the migration of constitutional ideas as a form of judicial activism that further undermines the legitimacy of judicial review.
Israel, Canada, and Germany. This model views judicially enforced constitu- tional rights as crystallizations of inherent human dignity and comparative constitutional analysis as a natural by-product of the shared constitutional template that transcends jurisdictional boundaries. While the dominant view is that the postwar model is totally foreign to the US experience, Weinrib argues that the rights-based conception has a pedigree in the decisions of the Warren Court, which themselves influenced constitutional courts in other countries.
Recent debates over reference to comparative materials have been unnecessarily acrimonious as a result of the view that there are two competing conceptions of constitutionalism, only one with roots in US legal and political experience. Part II: Convergence toward a liberal democratic model?
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Lorraine Weinrib has offered a powerful model of comparative constitutional law that makes three controversial claims. First, the migration of constitutional ideas through judicial borrowings has facilitated the emergence of a common constitutional model for constitutions in a variety of jurisdictions. Third, this emerging constitutional conversation has not, for the most part, involved the United States.
The chapters in this section engage with each of these points. He asks two questions: whether convergence toward a common constitutional model is a good thing, and whether judicial interpretation should serve as a vehicle for convergence. Goldsworthy answers both questions in the negative. Pointing to the diversity of institutional arrangements surrounding judicial review in England, New Zealand, and Canada, Goldsworthy suggests that significant variations continue to distinguish different liberal democratic constitutions. He also suggests that diversity and experimentation in constitutional design enable adaptation to differing political and cultural circumstances.
Finally, Goldsworthy argues against convergence through constitutional interpretation. He asserts that such an interpretive stance fails to take seriously the constraints that text imposes on the legitimate role of the courts in elaborating constitutional meaning. Free speech makes for an interesting case study because it is valued by many versions of liberal constitutionalism. They pose a series of questions.
Is the importation of such norms sufficient to pave the way to liberal constitutionalism, or must certain preconditions prevail or become developed prior to any successful transplantation? Can the importation of liberal constitutional norms have a significant impact notwithstanding the concurrent importation of non-liberal constitutional norms?
It also suggests the need to take a longer-term view of the project of liberalism, as the authors argue that apparently illiberal influences can be co-opted into the service of liberalism. He argues that most students of comparative constitutionalism have assumed this divide to be an insurmountable barrier to the migration of constitutional ideas. In particular, while it is often supposed that unwritten legal principles can migrate freely among common law jurisdictions, it is also presumed that the centrality of text to legal reasoning in civilian systems makes them impervious to such arguments.
Gaudreault-DesBiens argues, however, that this view is based on a caricature of the civil law tradition. Properly understood, the civil law tradition holds that legal texts are always based on underlying and unwritten legal principles on which courts may rely to supplement textual provisions. Indeed, unwritten principles may even provide courts a justification for refusing to follow explicit textual provisions in a given case. He argues, counter-intuitively, that this interpretive methodology has in fact migrated from the civil law into the common law world of Canadian public law.
His principal example is the judgment of the Supreme Court of Canada in the Quebec Secession Reference, often offered as the leading example of unwritten, common law constitutionalism. Finally, Brenda Cossman Migrating marriages and comparative constitutionalism takes up the claim that the US constitutional system is impervious to comparative influence.
As a case study, she examines the impact of the Canadian jurisprudence on same sex marriage in the United States. Cossman agrees with Weinrib that the judgments will have little or no direct impact on US legal developments because of US exceptionalism. She suggests, further, that a narrow focus on the migration of constitutional doctrine misses out on the important role that cultural representations of foreign constitutional developments play in US constitutional debates.
Cultural representations of same sex marriages of Americans that have taken place in Canada are significant interventions in US constitutional debates around same sex marriage because they reconstitute the very nature of the gay and lesbian subject, and the very nature of marriage. Part III: Comparative constitutional law, international law and transnational governance Whereas many of the chapters explore the migration of constitutional ideas across national jurisdictions, Mayo Moran and Mattias Kumm enter this debate from a different angle.
International law especially international human rights law increasingly serves as a source of constitutional ideas for domestic legal orders through judicial inter- pretation. Moran and Kumm accordingly address the question of constitutional migration through the lens of traditional models for the reception of international law into domestic law.
Mayo Moran Inimical to constitutional values: complex migrations of constitutional rights approaches this issue by linking two hitherto unconnected debates. The first is the use of international and comparative law in domestic constitutional adjudication, and the second is the use of domestic constitutional law in private law adjudication. Both phenomena tend to occur in the same jurisdictions, such as South Africa. Moran suggests that this is not surprising, since both rely on a conception of legal sources that rejects the traditional fixation with the presence or absence of binding sources of law.
Constitutional practice points to a more nuanced and complex theory of legal sources — one where the values of international and comparative law exert some kind of mandatory effect upon domestic constitutional law, and where the values of constitutional law exert a comparable effect on domestic private law, even when international and constitutional legal rules do not apply directly.
As an alternative, he suggests a differentiated approach within domestic constitutional doctrine directly to engage with the reasons offered by proponents and opponents of the use of international law in domestic adjudication. These are formal concerns relating to the idea of international legality, jurisdictional concerns relating to subsidiarity, procedural concerns relating to participation and accountability, and substantive concerns relating to individual rights. Different treaties would be treated differently.
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