Infrastructures—whether physical, informational, digital—can have regulatory-type effects. These include requiring, preventing, channeling, enabling, and nudging particular human and social behavior. Infrastructures also help to shape second-order regulatory-type actions and structures. When stable, these infrastructures exert substantial power in social ordering. They interact or compete with law. In these ways, infrastructures have major effects on social relations, identities, roles, capabilities, and possibilities. We label these phenomena collectively by the moniker “Infrastructures as Regulation” (InfraReg).
In our project we focus on regulatory effects of transnationally-connected infrastructures on social orders— e.g. effects on social relations, status, classes and class formation, social mobility, social time, and capabilities—and the interactions between social order and political, economic, and other infrastructure-based orders.
When we speak of infrastructures, we mean
- physical infrastructures (e.g., roads, bridges, ports, electrical grids, railways, and dams)
- informational infrastructures (e.g., databases, know-how, and indicators)
- digital infrastructures (e.g., internet protocols, cloud-computing services, e-commerce platforms)
The entangling of multiple infrastructures can transform not only their regulatory effects, but also their regulatability. Regulatory effects are those that shape behavior, such as requiring, preventing, channeling, enabling, and nudging particular human-social behavior. Some infrastructure projects are intended to regulate with a view to specific results, or at least have purposes which can readily be (re-)characterized as regulatory. In other cases, regulation and regulatory effects are a wholly unconsidered by-product. Proponents of infrastructure projects routinely present them as being enabling—as means to facilitate flows and activity, or as platforms to be used and built on. Investigating “infrastructures as regulation” thus requires looking beneath or beyond what is directly expressed by decision-makers, and excavating the (non-regulatory) narratives and ideologies about infrastructures that play a part in their regulatory effects.
Distributional dimensions of infrastructures go beyond questions of access. In social orders, infrastructures also regulate through displacement. For example, a highway may displace a town, a train track may displace buses along the same route, and supermarkets may displace street vendors. While grounded in globalization, these displacement effects are often local—infrastructures thus become transmission belts from the global to the local, where they regulate people’s lives, and affect their relative and total income, power, capabilities, and life-possibilities.
Social movements, indigenous peoples, civil society organizations, and others frequently confront, contest, and seek to influence the regulatory power of infrastructures and they stand as symbols for the wider social order. In response, governments develop safety valves with the goal of easing particular concerns and protecting the system from wholesale contestation. International financial institutions like the World Bank and the IMF have established transparency and civil society engagement policies and opportunities for challenging projects in which they are involved, but these are more likely to influence how the projects will be carried out rather than which projects will be carried out. Infrastructures-as-regulation, however, influence more than simply the rational calculations of individuals and societies. They become important means of structuring narratives of globalization and framing peoples’ imagination about their temporal and spatial place in existing and future orders and orderings. Where infrastructures create or solidify orders, the mechanisms by which they do so may blend interest-based incentives with ideas or narratives that help conjure a potent “imaginary”. Analyzing the narratives around infrastructures can thus yield important insights into the assumptions about the world of those creating and reacting to them and how infrastructures are placed in existing and given new social and political meaning.
Infrastructures of and for globalization are not governed by a comprehensive legal framework. Global commitments to the liberalization of trade in goods and services in bilateral, regional, and “megaregional” free trade agreements and the WTO regulate economic flows, but only to a very limited extent do they regulate the underlying facilitating physical, informational, and digital infrastructures. Rather, different legal and institutional technologies are being used for the funding, ownership, operation, and interaction of these infrastructures. Understanding these mechanisms—often private and public-private—is critical to analysis of infrastructures-as-regulation, because infrastructures’ social-ordering power is enabled, steered, shaped, and limited by them. To more fully identify, understand, and explain instances of infrastructure-as-regulation, the role of legal technologies needs to be integrated into the study of infrastructures. We initially focus on four clusters of legal technologies, practices, and institutions: contracting and property; business-incorporation, investment and finance; public regulation; and dispute resolution and remedies but this list is by no means exhaustive.
- Contracting is a central legal technology for the transnational governance of infrastructures. Some infrastructures are built on long-term webs of relational contracts. This is the case, for example, of supply chains and distribution networks running on franchise or licensing models, archetypical in the supermarket business.
- Property for infrastructure owners (and their funders) may involve securities of ownership for physical structures, or simply the resulting revenues, as with concessions for tolled highways. In the ambient sociolegal order, major issues of justice and contestation arise where an infrastructure project envisages dispossession or displacement of existing users. Similarly, intellectual property (IP) rights such as patents and copyrights shape the design of physical, informational, and digital infrastructures, such as information and communication hardware, and code.
- The corporation is a central form of organization in the ownership and operation of infrastructures. Whether state owned, closely held, owner-controlled, or truly public, the limited liability of equity owners, the ability to offer debt in global markets rated for risk using standardized services, easy access to low-tax nationality, and the general unwillingness of courts to look behind the corporate form to the real controlling interests and beneficiaries make the corporate form appealing for organizing infrastructures.
- A critical tool regulating infrastructures is public regulatory program on transparency and anti-corruption. Concerns about collusion or even outright corruption between government officials and providers of infrastructure in underestimating costs, overestimating revenues, deflating environmental impacts and exaggerating economic development effects to secure the approval of the projects mark many projects. But powerful, if often unsatisfactory, legal technologies against such practices exist, suggesting that their absence in the regulation of infrastructures reflects (at least for powerful states) often a choice rather than a necessity.
- Infrastructures provoke disputes. In dispute settlement between infrastructure owners on one hand and potential regulators as well as users on the other hand, the use of international commercial arbitration instead of relying on local courts is a technique for infrastructure owners to operate in a specific physical location without submitting to its rules. While the physical infrastructure is necessarily located in a certain place, transnational legal technologies are being used to limit one’s legal and operational exposure to that same place. The system of international investment arbitration operates similarly. Even though it incorporates some exceptional safety valves, governments are mostly restricted in their capacity to establish legislation that affects the stream of revenues of infrastructure providers, even in the case of serious socio-economic crises. Away from the state, user-user disputes have produced new forms of private regulation. Increasingly, digital infrastructure companies such as Amazon and Ebay create their own online dispute settlement systems to resolve conflicts between sellers and buyers, businesses and consumers. Aided by the underlying digital infrastructure, and by state enforcement of contracts in which users have “agreed” to use only these processes, these privately-operated systems have largely displaced traditional state-based legal dispute resolution in courts in their fields of operation.