ABSTRACT
One hears that economic globalization has no “explicit political or authority structure”, and beyond the administrative reach of citizens and states. The emergence of a transnational regime of rules for the protection and promotion of foreign investment challenges directly the proposition that global capital has no tangible, institutional fabric. Constitutional rules facilitate, rather than simply inhibit, open democratic government. The innovation of Madisonian republicanism, Stephen Holmes reminds us, was to devise precommitment strategies in the form of constitutional rules that could free citizens from having to generate new rules in every successive generation. States are pursuing codification of the rules for foreign investment in a number of arenas. The “non-discrimination” provisions operated both prior to and after an investor had entered the host state. Non-resident foreign investors who wished merely to establish a presence in the host country, then, were entitled to equal treatment with domestic nationals even before they made any investment.
