Economic Constitutions beyond the State: EU Free Movement Law and International Investment Law in Comparative Perspective

EU free movement law (EUFML) and international investment law (IIL) share ostensible features. Both regimes have been turned into comprehensive ‘economic constitutions’, enabling economic actors to directly challenge generally applicable legislation. In so doing, they have faced sharp contestation for unsettling several “20^th century” conventional boundaries – between the market and the State, between adjudicative and political institutions, and between the inter-/supranational and the national spheres.

Despite these striking similarities, a comparative account of EUFML and IIL is lacking. This is all the more surprising, in light of the unfolding consequences of the Achmea saga. In my research, I draw on the comparative law methodological debate to argue for the comparability of EUFML and IIL. I thus submit that EUFML and IIL are functionally equivalent tools, allowing for a renegotiation of political economies outside the political process. To this extent, EUFML and IIL are fruitfully comparable, despite their sharply diverging doctrinal self-portrayals. This descriptive finding, however, does not detract in turn from the different axiological and institutional horizons within which EUFML and IIL are normatively located. My research thus critically tests the extent to which the divaricated assumptions underlying each regime are reflected in their practical implementation.

Speaker: Paolo Mazzotti (Max Planck Heidelberg) is a PhD researcher at the Max Planck Heidelberg, currently visiting the Cambridge Law Department.

The event will operate on a first-come, first-served basis