Global policymaking is fundamentally political: the assumption that “if only people could agree, then we would live in a better world” makes for a deeply problematic starting point for the analysis of global governance. Any collective course of action is bound to favor some groups more than others, and to embody a particular vision of the common good at the expense of alternative perspectives. Focusing on social conflict as the engine of global governance helps us to bring politics to the fore, not as a hindrance but as the natural condition of society – global or otherwise. In any policymaking process, power dynamics and unequal participation ultimately remain; however, inclusive contemporary global practices claim to be. Likewise, the competing value systems and ideologies that structure global policymaking can never be fully arbitrated by objective and neutral means. We connect our framework and cases to the broader politics of global governance, identifying two basic cleavages between globalists and sovereigntists, on one hand, and between issue-specific Leftist versus Rightist positions. This impressionistic overview has the advantage of showing how global policymaking, far from floating in a political void, is in fact embedded in a broader fabric of social conflict.

This chapter deconstructs the main argument of orthodox doctrinal scholarship on regulatory expropriation. It argues that the strong impetus of orthodox scholarship to solve problems leads both those favouring strong investor protection and those arguing for a wide state freedom to regulate to see the problem in virtually the same terms and to develop the same solution. The problem identified is that neither of the two extremes is sustainable; the solution is that a balance has to be struck. Yet such a view is ideological, not legal, because it cannot contemplate and must deny a priori the possibility that IIA expropriation clauses are skewed in one direction or that the law does not provide for a balanced, proportional solution. Doctrinal scholarship, however, must analyse the law as it is, not as we may wish it to be.