Movement, Countermovement, and Investment Rules

This paper examines the extent to which one manifestation of neoliberal transnational legality, represented by the investment rules regime, may be vulnerable to critical resistance in the post-recession environment. If the regime was experiencing a crisis of legitimacy before the global recession set in, it might now be portrayed as having broken down entirely. This paper argues, in contrast, that the regime has a constitution-like resiliency that is intended to adapt and last far beyond the present unsettled global scene. First, for many states in the global South, there is no possibility of a Polanyian countermovement without an influx of needed capital from sources such as international financial institutions or foreign investors. This has the effect of locking states further into the regime's web of disciplines. Second, international investment tribunals have been reflexive agents and have responded to legitimacy problems raised by state and social movement actors by adjusting their interpretation of investment treaty disciplines. It turns out that, as Foucault warned, everything is dangerous - states and social movements must move carefully as they proceed to navigate through the current conjuncture. ..PAT.-Unpublished Manuscript