Of Little Constitutional Interest

Abstract

Abstract If extractivism has been a priority for the political branches in Peru, its apex court—the Peruvian Constitutional Tribunal—seems disinterested in disturbing the primacy accorded to foreign investment. Although the Tribunal has, in some instances, pushed back against a powerful executive branch and has enforced some social and economic constitutional commitments, it has fallen mostly into line with executive branch priorities. These include commitments made to foreign traders and investors via new free trade and investment agreements. The Tribunal’s response to the threat of diminished constitutional space due to investment treaty law and arbitration, following upon a series of recent constitutional cases, is one best described as a stance of hard deference. For the most part, the Tribunal has deferred to—even embraced—the potential diminution of policy options otherwise constitutionally available to the Peruvian state. Two influences seem to be at work. First is the Tribunal’s submission to the desires of Peru’s powerful executive branch. Second is the influence of investment law disciplines themselves—as on at least one occasion judges eagerly incorporated the investment law doctrine of indirect expropriation into Peruvian constitutional law. On the whole, the Constitutional Tribunal has chosen to ignore the diminution of Peruvian constitutional space.