This event will begin with a presentation by Professor Petersmann on his new monograph, Transforming World Trade and Investment Law for Sustainable Development (OUP March 2022), where he will elaborate on his main claims of the book. That is to say, Professor Petersmann argues that the 2015 UN Sustainable Development Agenda (SDA) for ‘Transforming our World’ cannot be realized without constitutional reforms of international trade, investment, environmental and UN law. Likewise, the geopolitical rivalries and value conflicts between authoritarian state-capitalism, business-driven neo-liberalism and Europe’s citizen-driven, ordo-liberal constitutionalism render constitutional reforms of UN/WTO governance increasingly unlikely, thereby increasing ‘regulatory competition’ and ‘regionalization’ rather than UN/WTO reforms.
Furthermore, democratic and republican reforms (like stronger judicial remedies of citizens, stronger democratic accountability of governments, more ‘deliberative’ and ‘participatory democracy’ empowering private-public partnerships for global ‘network governance’ of public goods = PGs) for transforming trade, investment, environmental and human rights law in support of the sustainable development goals (SDGs) risk remaining limited to (European) democracies. Finally, the legal methodology for analysing the EU’s multilevel constitutionalism for multilevel governance of PGs – and also of the ‘UN constitutionalism’ recommended in UN human rights law and the SDA in spite of its ‘constitutional implementation deficits’ – calls for citizen-focused ‘constitutional economics’ (eg focusing on ‘market failures’, ‘governance failures’ and ‘constitutional failures’ in protecting human rights and the SDGs) rather than mere ‘welfare economics’ and state-centered ‘public choice’ analyses.
Professor Esty’s presentation will comment on these claims by focusing on why European and US approaches to environmental legislation, rights and remedies are so different. He will discuss, for instance, whether the proposition of professor Petersmann is convincing that ‘business-driven regulatory capture’ (e.g. of tax, trade remedy and environmental regulation) and ‘money-driven political capture’ (e.g. of the US Presidency, USTR positions, US Secretary of Commerce etc) remain more problematic under the neo-liberal US Constitution than under the EU’s multilevel, ordo-liberal constitutionalism embedded into multilevel democratic and judicial checks and balances. Do human, constitutional and environmental rights and judicial remedies restrain abuses of public and private power more effectively under EU constitutionalism compared with the ‘judicial exceptionalism’, ‘human and environmental rights exceptionalism’ and ‘exceptional presidential powers’ (e.g. as claimed by President Trump) under US constitutional nationalism? Is the EU leadership for maintaining international rule-of-law (e.g. through WTO appellate arbitration), for carbon taxes and carbon border tax adjustments (CBAMs), and for promoting other SDGs (e.g. through climate change and other environmental litigation) due to the EU’s democratic, economic and ‘foreign policy constitutionalism’ (e.g. Arts 3, 21 TEU)? Will transatlantic leadership (e.g. for TTIP 2.0, CPTPP 2.0, CBAMs, realizing the SDGs) remain difficult and contested (e.g. vis-à-vis China, Russia, their ‘authoritarian alliances’ and ‘Western counter-measures’), even though the ‘old neoliberal Washington consensus’ is challenged also by the US Biden administration and the Bretton Woods institutions?