IILJ Working Paper 2016/2 (MegaReg Series)

Democracy Captured: The Mega-Regional Agreements and the Future of Global Public Law

Eyal Benvenisti

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The negotiations over the Transatlantic Trade and Investment Partnership (TTIP) and the Trans Pacific Partnership (TPP) exemplify the efficacy and the consequences of fragmentation as a “divide and conquer” strategy. By choosing this negotiating strategy and by maintaining secrecy over the contents of the envisioned rules, the negotiators exclude diverse stakeholders in developed and developing countries who will be affected by agreements that are set to establish rules for the global economy. This Essay outlines the challenges to democracy — both at the domestic level and at the global level — posed by these negotiation processes and by their envisioned outcomes. It then moves on to assess the potential institutional responses that might eventually arise and replicate, at the global level, checks and balances among stakeholders that have traditionally been secured domestically by national constitutions and enforced by national courts and legislatures.