Investment rules and the new constitutionalism

The new model for economic and political renovation mandates the entrenchme nt, beyond the reach of majoritarian control, of rules for the free movemen t of transnational capital. This "new constitutionalism" removes key aspect s of economic life from the influence of domestic politics within nation st ates. A manifestation of this new orthodoxy is the network of bilateral inv estment treaties designed to ensure foreign investors security from "discri mination" and "expropriation," and conferring standing on investors to sue in the event that their investment interests are impaired. This paper exami nes the agency of the state in promoting this self-binding regime of invest ment rules and its potential impact on domestic constitutional regimes. Of particular concern. here are constitutional arrangements that protect prope rty, such as that recently enacted in the Republic of South Africa, that de viate from the norms expressed in the transnational investment-rules regime .