Blind spots in IPE: contract law and the structural embedding of transnational capitalism

Abstract

This paper focuses on the ‘blind spots in IPE’ recently addressed in related Special Issues of Review of International Political Economy and New Political Economy. It identifies a blind spot of law in IPE, tracing the problem to a blind spot in the discipline of international relations (IR) generated by tendencies in dominant theories to consider international law to be super-structural, epiphenomenal, and not worthy of political analysis, and to associations of international law with idealism. The analysis notes an inverse blind spot in international law (IL), wherein legal scholars tend to regard IL as autonomous of politics and the political economy of ‘who gets what, when, how’. These blind spots contribute to the neglect of how legal forms function to mystify the political economy of IL, thereby advancing transnational capitalism and inequality. The empirical focus is on transnational contract law, dispute settlement, and value and production chain contracting. These laws function as Capital’s law and central pillars of the transnational politico-legal order by reaching deep inside states to restructure domestic spheres according to new constitutionalism and the demands of transnational capital. Drawing on critical political economy, the paper develops a historical materialist analysis to denaturalize and demystify Capital’s law. This is a necessary move for scholars interested in the progressive and emancipatory potential of IL.

Keywords:

• Blind spots
• international political economy
• international relations
• international law
• transnational contract law
• investor-state dispute settlement
• supply and production chain contracting
• new constitutionalism

Disclosure statement

The author discloses that there are no competing interests to disclose.

Notes

1 For new institutional economics see North (1990). For the law and economics movement, see Posner (1980). For a good review of the literature on private ordering see Richman (2004).

2 For the classic definition of standard form contracts and discussion of the unequal power relations embedded within them, see Sales (1953). See Korobkin (2003) for the predominant use of standard form contracts in commercial relations.

3 See Zumbansen (2007) for a good overview of legal realism.

4 See Mayer and Phillips (2017) for an excellent review of dominant approaches to the study of the global value chain world and the neglect of the political economy foundations in the dominant literature on global value chains (GVCs) and global production chains (GPCs).

5 For an interesting view see Koskenniemi (2011b).

Additional information

Notes on contributors

A. Claire Cutler

A. Claire Cutler is a Professor of International Relations & International Law in the Political Science Department at the University of Victoria, Victoria, BC, Canada. She specializes in developing a critical political economy analysis of public and private international law. Her publications include The Politics of Private Transnational Governance by Contract, with Thomas Dietz (Routledge, 2017) and New Constitutionalism and World Order, with Stephen Gill (Cambridge University Press, 2014).