Conclusion

Abstract

Abstract Taking into account interests not otherwise heard is offered as a key rationale for protecting foreign investors. Constitutional interpretation that disrupts this dominant trendline, it is argued, should be resisted in favour of review that smooths integration in accordance with value system associated with economic globalization. On what grounds should judges yield to preferences granted to some of the most powerful economic actors in the world today despite the complex and sometimes delicate compromises that are entrenched in constitutional text? Is it not, after all, the ‘province and duty’ of apex court judges to enforce constitutional obligations in the face of obvious constitutional transgressions? Or do judges, as some scholars suggest, have an obligation to yield to the executive branch embrace of international investment law edicts irrespective of national constitutional settlements. The Conclusion examines proposals that argue for ‘conditional coexistence’ or ‘dialogue.’ Most of these contributions call upon apex courts to succumb to the investment law regime. Yet constitutions are not mechanisms for imposing uniformity but spaces for dialogue and negotiation over constitutional meaning. International investment law, on the other hand, is built to serve as a prophylactic for foreign firms to guard against political risk, namely, state action that renders their investments less profitable. The regime is reluctant to crowd these rights with countervailing interests. Instead, it is a regime that aspires to uniformity and homogeneity rather than a legal order that listens to all sides. It is not a model worthy of constitutional respect.