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ABSTRACT
In 2018, the G20 endorsed the ‘Roadmap to Infrastructure as an Asset Class’. This document crystallizes a roaring policy agenda focused on transforming ‘infrastructure’ into a homogeneous, tradeable investment opportunity, attractive to global financial markets. Although the Roadmap is formally a mere policy blueprint, this article studies it as a legal document—one whose purpose is to code infrastructures into capital. Specifically, the article makes three claims, two analytical and one normative. First, that the Roadmap’s way of attracting investors ultimately consists in shielding the decision-making processes related to the design and maintenance of infrastructures from democratic interference. Second, that these restrictions are enforced through global governance mechanisms that push the relevant decision-making authority from the national to the global. And third, that the Roadmap’s agenda is problematic from a democratic standpoint, because it disempowers those who should have a say over the development and maintenance of these infrastructures.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 G20, ‘Leaders’ Declaration: Building Consensus for Fair and Sustainable Development’ (2018) para 1, online: < www.g20.utoronto.ca/2018/2018-leaders-declaration.html> (accessed 20 June 2019).
2 Ibid, 10.
3 Ibid.
4 See, eg Rabah Arezki and others, ‘From Global Savings Glut to Financing Infrastructure’ (2017) 32 Economic Policy 221; Jeff Delmon, ‘Mobilizing Private Finance with IBRD/IDA Guarantees to Bridge the Infrastructure Funding Gap’ (2007) 7042 <http://documents.worldbank.org/curated/en/357321468340467708/Mobilizing-private-finance-with-IBRD-IDA-guarantees-to-bridge-the-infrastructure-funding-gap>.
5 Richard Dobbs and others, McKinsey Global Institute, ‘Infrastructure Productivity: How to Save $1 Trillion a Year’ (1 January 2013), online: <www.mckinsey.com/industries/capital-projects-and-infrastructure/our-insights/infrastructure-productivity>. A subsequent report increased this number to $3.7 trillion per year: see Jonathan Woetzel and others, McKinsey Global Institute, ‘Bridging Infrastructure Gaps: Has the World Made Progress?’ (October 13 2017), online: < www.mckinsey.com/capabilities/operations/our-insights/bridging-infrastructure-gaps-has-the-world-made-progress>.
6 Nancy Alexander, Heinrich Böll Foundation North America, The Emerging Multi-Polar World Order: Its Unprecedented Consensus on a New Model for Financing Infrastructure Investment and Development (2014) online: <https://us.boell.org/2014/12/03/emerging-multi-polar-world-order>. See also Daniela Gabor, ‘The Wall Street Consensus’ (2021) 52 Development and Change 429.
7 For recent examples of this narrative in reports, blog posts, and other venues, see, eg, Julie Rozenberg and Marianne Fay (eds), World Bank, Beyond the Gap: How Countries Can Afford the Infrastructure They Need While Protecting the Planet (2019) online: <https://documents.worldbank.org/en/publication/documents-reports/documentdetail/189471550755819133/beyond-the-gap-how-countries-can-afford-the-infrastructure-they-need-while-protecting-the-planet>; Anita George, Rashad-Rudolf Kaldany and Joseph Losavio, World Economic Forum, ‘The World Is Facing a $15 Trillion Infrastructure Gap by 2040. Here’s How to Bridge It’ (11 April 2019) online: <www.weforum.org/agenda/2019/04/infrastructure-gap-heres-how-to-solve-it/> ;G20/OECD, Report on the Collaboration with Institutional Investors and Asset Managers on Infrastructure: Investor Proposals and the Way Forward (2020), online: <www.oecd.org/finance/g20-collaboration-with-institutional-investors-and-asset-managers-on-infrastructure.htm>; Daniel Zelikow and Fuat Savas, World Bank Blogs, ‘Mind the Gap: Time to Rethink Infrastructure Finance’ (20 May 2022), online: <https://blogs.worldbank.org/ppps/mind-gap-time-rethink-infrastructure-finance>. For a literature review, see Surbhi Gupta and Anil Kumar Sharma, ‘Evolution of Infrastructure as an Asset Class: A Systematic Literature Review and Thematic Analysis’ (2022) 23 Journal of Asset Management 173.
8 G20 (n 1) para 10.
9 In 2020, the International Monetary Fund estimated that these measures stood at $11.7 trillion. See International Monetary Fund, Fiscal Monitor. Policies for the Recovery (October 14 2020), xi, online: <www.imf.org/en/Publications/FM/Issues/2020/10/27/Fiscal-Monitor-October-2020-Policies-for-the-Recovery-49642>.
10 See, eg, Ibid.
11 International Monetary Fund, Fiscal Monitor. Strengthening the Credibility of Public Finances (2021) ix < www.imf.org/en/Publications/FM/Issues/2021/10/13/fiscal-monitor-october-2021>.
12 Vitor Gaspar, Paulo Medas and Roberto Perrelli, IMF Blog, ‘Global Debt Reaches a Record $226 Trillion’ (15 December 2021), online: <https://meetings.imf.org/en/IMF/Home/Blogs/Articles/2021/12/15/blog-global-debt-reaches-a-record-226-trillion>.
13 Global Infrastructure Hub, Phase 2 of Transformative Infrastructure for COVID-19 Recovery. Final Report for the G20 Infrastructure Working Group (IWG) (2021) 3, online: https://cdn.gihub.org/umbraco/media/4243/gi-hub-phase-2-of-transformative-infrastructure-for-covid-19-recovery.pdf. See also Santiago Castagnino and others, Boston Consulting Group, ‘The Role of Infrastructure Stimulus in the COVID-19 Recovery and Beyond’ (2020), online: www.bcg.com/publications/2020/infrastructure-stimulus-in-covid-pandemic-recovery-and-beyond; Deloitte, ‘Infrastructure as an Economic Stimulus’ (October 2020) www2.deloitte.com/th/en/pages/public-sector/articles/infrastructure-as-an-economic-stimulus.html.
14 G20 and Global Infrastructure Hub, ‘Framework on How to Best Leverage Private Sector Participation to Scale Up Sustainable Infrastructure Investment’ (2022)3, online:< www.gihub.org/resources/publications/g20gi-hub-framework-on-how-to-best-leverage-private-sector-participation-to-scale-up-sustainable-infrastructure-investment/>.
15 UNOPS, UNEP, and University of Oxford, Infrastructure for Climate Action (2021) 1, online: <www.unops.org/news-and-stories/news/infrastructure-for-climate-action>.
16 IMF (n 9) xi.
17 Ibid, 34. The Heads of the IMF Fiscal Department argued that ‘fiscal and monetary policies fortunately complemented each other during the worst of the pandemic.’ See Gaspar, Medas and Perrelli, ‘Global Debt Reaches a Record $226 Trillion’ (n 12).
18 Maria Vagliasindi and Nisan Gorgulu, ‘What Have We Learned about the Effectiveness of Infrastructure Investment as a Fiscal Stimulus? A Literature Review’ (2021) World Bank Policy Research Working Paper 9796, online: https://elibrary.worldbank.org/doi/abs/10.1596/1813-9450-9796.
19 Commentators like Brett Christophers have noted, however, that many of these investments--for instance, in Joseph Biden’s infrastructure plan in the United States--were centrally oriented at ‘encouraging private-sector financing – most notably, of electricity-generating facilities and transmission networks, as well as vehicle-charging networks’. According to Christophers, ‘this certainly was not a Rooseveltian vision for a new era of large-scale, publicly financed, publicly owned infrastructure, despite much of the rhetoric surrounding the proposals in early 2021.’ Brett Christophers, Our Lives in Their Portfolios: Why Asset Managers Own the World (Verso, 2023) ch 6.
20 See, eg, Rozenberg and Fay,‘Beyond the Gap: How Countries Can Afford the Infrastructure They Need While Protecting the Planet’ (n 7); G20/OECD, (n 7).
21 The IMF, for instance, began to reduce its focus on stimulus and instead turned to suggesting pathways to reduce deficits and return to pre-pandemic debt levels. See IMF (n 11) xii.
22 Global Infrastructure Hub, Infrastructure Monitor (2021), 4, online: <www.gihub.org/resources/publications/infrastructure-monitor-2021-report/>.
23 G20, Global Infrastructure Facility and World Bank, Stocktake of Approaches That Leverage Private Sector Investment in Sustainable Infrastructure (2022), 3 online: < www.globalinfrafacility.org/knowledge/stocktake-approaches-leverage-private-sector-investment-sustainable-infrastructure>.
24 Ibid.
25 G20, ‘Riyadh Leaders’ Declaration’ (2020), para 15, online: <www.g20.utoronto.ca/2020/2020-g20-leaders-declaration-1121.html>.
26 G20/OECD (n 7) 5.
27 G20, ‘Bali Leaders’ Declaration’ (2022), para 38, online: <www.bundesregierung.de/resource/blob/997532/2143366/2d83f07f195e98a12f1f7659dacea285/2022-11-16-g20-declaration-data.pdf?download=1>.
28 G20 and Global Infrastructure Hub (n 14) 2.
29 Ibid. The Framework adds a general emphasis on sustainability—explicitly aiming at meeting Paris Agreement targets—and a series of new action plans, related to data sharing and technological innovation. For the most part, however, it reaffirms the core tenets of the Roadmap, arguing that governments ‘have key roles to play in reducing legal, regulatory and policy barriers and implementing incentives and policies to create enabling environments for infrastructure financing’ (ibid (n 8)). Though it does not outline new specific policies to be adopted by governments (it only proposes the creation of spaces for further global engagement), the Framework reaffirms the Roadmap’s agenda: it stresses the goal of developing ‘a deep and liquid asset class for sustainable infrastructure’ (ibid (n 7)). and insists that ‘improved regulatory frameworks, transparency, project preparation facilities and de-risking mechanisms are needed to enable access to long-term financing instruments and greater depth of local financial and capital markets’ (ibid (n 8)).
30 Morten Ougaard, ‘The Transnational State and the Infrastructure Push’ (2018) 23 New Political Economy 128.
31 Jago Dodson, ‘The Global Infrastructure Turn and Urban Practice’ (2017) 35 Urban Policy and Research 87; Jenny McArthur, ‘Infrastructure Finance: Historical Perspectives and the Evolution of Financial Instruments’, Society for the Advancement of Socio-economics Annual Conference (Society for the Advancement of Socio-economics Annual Conference 2019) 2, online: <http://sase.org/wp-content/uploads/2018/06/SASE-New-York-Program-2019.pdf>.
32 J Miguel Kanai and Seth Schindler, ‘Peri-Urban Promises of Connectivity: Linking Project-Led Polycentrism to the Infrastructure Scramble’ (2019) 51 Environment and Planning A: Economy and Space 302.
33 Gabriella Y Carolini and Isadora Cruxên, ‘Infrastructure: The Harmonization of an Asset Class and Implications for Local Governance’ in Janelle Knox-Hayes and Dariusz Wójcik (eds), The Routledge Handbook of Financial Geography (Routledge, 2020) 236.
34 Ibid.
35 Ibid. On the historical evolution of this process, see, eg, Andy Pike and Jane Pollard, ‘Economic Geographies of Financialization’ (2010) 86 Economic Geography 29; Phillip M O’Neill, ‘The Financialisation of Infrastructure: The Role of Categorisation and Property Relations’ (2013) 6 Cambridge Journal of Regions, Economy and Society 441; Peter O’Brien and Andy Pike, ‘The Financialization and Governance of Infrastructure’ in Ron Martin and Jane Pollard (eds), Handbook on the Geographies of Money and Finance (Edward Elgar Publishing, 2017). For a literature review, see Gupta and Sharma (n 7).
36 G20/OECD (n 7) 1.
37 Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (Princeton University Press, 2019) 2.
38 Ibid.
39 Ibid, 13–15.
40 See Nikolas Rose, Pat O’Malley and Mariana Valverde, ‘Governmentality’ (2006) 2 Annual Review of Law and Social Science 83.
41 G20 (n 1) para 1.
42 Framing these mechanisms as legal devices is a starting point to bring legal scholarship into an epistemic community that has been largely dominated by other, more instrumental, strands of thought. Letizia Lo Giacco explains that ‘public—private partnerships as a regulatory tool have attracted sparse attention among public international law scholars, as opposed to public administration scholars and economists, who have been exploring it for decades’. Gabriella Carolini and Isadora Cruxên note that ‘the mainstream political economy, business, and management scholarship on the financing of infrastructure tends to overlook questions of local governance and equity, and to prioritize concerns with efficiency and productivity. Where governance does come into the picture, it is primarily from the standpoint of setting up an institutional and regulatory environment that is more conducive to efficiency gains, or to increased private participation in the financing of infrastructure projects.’ See, respectively, Letizia Lo Giacco, ‘Private Entities Shaping Community Interests: (Re)Imagining the “Publicness” of Public International Law as an Epistemic Tool’ (2023) 0 Transnational Legal Theory 1, 24; Carolini and Cruxên (n 33) 247–48.
43 Luke A Heslop, ‘A Journey through “Infraspace”: The Financial Architecture of Infrastructure’ (2020) 49 Economy and Society 364. See also Carolini and Cruxên (n 33) 236.
44 I remain agnostic about whether it has, indeed, been put in motion (or to what extent it has), largely because making such a statement would necessitate an empirical assessment which is beyond the reach of this article. I believe, however, that the agenda is in itself an interesting object of study, worthy of both analytical and normative reflection.
45 G20, Roadmap to Infrastructure as an Asset Class (2018) 3, online: <www.g20.utoronto.ca/2018/roadmap_to_infrastructure_as_an_asset_class.pdf>.
46 Mariana Valverde, Fleur Johns and Jennifer Raso, ‘Governing Infrastructure in the Age of the “Art of the Deal”: Logics of Governance and Scales of Visibility’ (2018) 41 PoLAR: Political and Legal Anthropology Review 118, 119.
47 G20 (n 45) 4.
48 Gabor (n 6).
49 Benedict Kingsbury and Nahuel Maisley, ‘Infrastructures and Laws: Publics and Publicness’ (2021) 17 Annual Review of Law and Social Science 353.
50 Langdon Winner, ‘Do Artifacts Have Politics?’ (1980) 109 Daedalus 121, 128. See also Benedict Kingsbury, ‘Infrastructure and InfraReg: On Rousing the International Law “Wizards of Is” ’ (2019) 8 Cambridge International Law Journal 171, 182.
51 Kingsbury and Maisley (n 49) 354.
52 G20 (n 1) para 1.
53 G20 (n 45).
54 Ibid.
55 On ‘strategic ambiguity’, see, classically, Eric M Eisenberg, ‘Ambiguity as Strategy in Organizational Communication’ (1984) 51 Communication Monographs 227.
56 Philip O’Neill, ‘Infrastructure and Finance’ in Gordon L Clark and others (eds), The New Oxford Handbook of Economic Geography (Oxford University Press, 2018) 633.
57 On the history and complexities of defining ‘infrastructure’, see, eg, Ashley Carse, ‘Keyword: Infrastructure. How a Humble French Engineering Term Shaped the Modern World’ in Penelope Harvey, Casper Jensen and Atsuro Morita (eds), Infrastructures and Social Complexity (Routledge, 2017); William J Rankin, ‘Infrastructure and the International Governance of Economic Development, 1950–1965’ in Jean-Francois Auger, Jan Jaap Bouma and Rolf Künneke (eds), Internationalization of infrastructures: Proceedings of the 12th Annual International Conference on the Economics of Infrastructures (Delft University of Technology, 2009).
58 O’Neill (n 56) 633. See also Matthew Titolo, Privatization and Its Discontents: Infrastructure, Law, and American Democracy (Cambridge University Press, 2023) 208.
59 On how strategic ambiguity amplifies existing source attributions and preserves privileged positions, see, classically, Eisenberg (n 55) 234–36.
60 In the global policy literature, reference is often made to a distinction between ‘economic infrastructure’ and ‘social infrastructure’. The boundaries are of course artificial and blurry (as, eg, schools also contribute to the economy), and the categories are still too broad and vague, Yet even this distinction is however, typically overlooked when presenting the infrastructure gap’ assessment, never making clear which kind of infrastructure is considered an urgent necessity, and which is not. See, eg, Georg Inderst, ‘Financing Development: Private Capital Mobilization and Institutional Investors’ (2021) SSRN Scholarly Paper ID 3806742 6, online: <https://papers.ssrn.com/abstract=3806742>; Sharon McClements, Infrastructure Procurement and Funding: Harnessing Investment to Deliver a Better Future (Routldge, 2022) 3; João Pinto and Mário Coutinho dos Santos, ‘Asset-Based Structured Finance of Infrastructure Projects’ (2023) SSRN Scholarly Paper ID 4571399 1, online: <https://papers.ssrn.com/abstract=4571399>.
61 See the discussion on the evolution of the fiscal agenda in the years after the Roadmap supra in the introduction.
62 G20 (n 45). The estimates differ on the exact numbers: some other speak of $90 trillion (Torsten Ehlers, ‘Understanding the Challenges for Infrastructure Finance’ (2014) BIS Working Papers WP454-Bank for International Settlements 3, online: www.bis.org/publ/work454.pdf.) and others of as much as $100 trillion of professionally managed funds (see, eg Arezki and others (n 4) 225.).
63 G20 (n 45). Some authors suggest that the turn to infrastructure-as-an-asset-class is in fact a response to the excess liquidity created by the 2008 global financial crisis, rather than a response to the actual infrastructure needs of the people around the world (see, eg David Hall, ‘Why Public-Private-Partnerships (PPPs) Don’t Work: The Many Advantages of the Public Alternative’ (2015) Public Services International Research Unit, University of Greenwich, online: <www.world-psi.org/en/publication-why-public-private-partnerships-dont-work>; Nicholas Hildyard, Licensed Larceny: Infrastructure, Financial Extraction and the Global South (Manchester University Press, 2016)). But in any event, even believing that the main driver for the ‘infrastructure gap’ discourse is, indeed, the infrastructural needs of the people, there is certain agreement around the ‘savings glut’ appearing in the global financial markets (Arezki and others (n 4).).
64 This is explicit in a previous framing document elaborated by the Argentine government: ‘Mobilizing private investment toward infrastructure is crucial to closing the global infrastructure gap. It can also ensure a better return for those who today save and invest. This is a win-win objective and it requires international cooperation’ (G20, Overview of Argentina’s G20 Presidency 2018: Building Consensus for Fair and Sustainable Development (2017) online:<www.g20.utoronto.ca/2018/2018-Overview-en.html>).
65 ‘Infrastructure’ would, according to this discourse, become a kind of security on its own, differentiated from others: ‘The financial industry presents infrastructure as a new alternative asset class—in contrast to standard assets such as equities and bonds and established alternative assets such as buyout, venture capital and real estate—which would deliver new sources of stable return and better diversification of risk’ (Aleksandar Andonov, Roman Kräussl and Joshua Rauh, ‘The Subsidy to Infrastructure as an Asset Class’ (2018) CFS Working Paper Series 599 1, online: www.nber.org/papers/w25045).
66 Juan Antonio Ketterer and Andrew Powell, Inter-American Development Bank, ‘Financing Infrastructure: On the Quest for an Asset-Class’ (2018) 4, online: https://publications.iadb.org/en/financing-infrastructure-quest-asset-class. This risk is enhanced by the lack of appropriate capabilities in the private sector itself. See Georg Inderst, ‘Pension Fund Investment in Infrastructure’ 22 [date of publication and place of publication needed].
67 The ‘pipeline’ of projects has become a sort of buzzword in the international policy literature. See, eg ‘Understanding the Challenges for Infrastructure Finance’ (n 62) 3; World Economic Forum, ‘Strategic Infrastructure. Steps to Prepare and Accelerate Public-Private Partnerships’ (2013) online: <www.weforum.org/reports/strategic-infrastructure-steps-prepare-and-accelerate-public-private-partnerships>; G20 and Global Infrastructure Hub (n 14) 8; G20/OECD (n 7) 11, 21; G20, Global Infrastructure Facility and World Bank (n 23) 32. For an analysis, see Valverde, Johns and Raso (n 46).
68 On the ‘unprecedented’ nature of the consensus (which reminds of the 1990s Washington Consensus), see Nancy Alexander (n 6). See also Gabor (n 6).
189 G20 (n 45).
69 Carolini and Cruxên (n 33) 236.
70 G20 (n 45) 3.
71 Ibid 4.
72 Ibid 3.
73 Ibid.
74 Ibid.
75 Ibid.
76 Ibid. ‘Building up the necessary expertise is costly’, says a report by the Bank for International Settlements, ‘and investors will only be willing to incur these fixed costs if there is a sufficient and predictable pipeline of infrastructure investment opportunities. Otherwise, the costs can easily outweigh the potential benefits of investing into infrastructure over other, less complex, asset classes’ (‘Understanding the Challenges for Infrastructure Finance’ (n 62) 3).
77 Valverde, Johns and Raso (n 46) 119.
78 For a critical analysis of this view, see Rankin (n 57).
79 It is thus ‘the inescapable responsibility of the state to make sure the stock of social overhead capital required for take-off is built’ (Walt Whitman Rostow, The Stages of Economic Growth: A Non-Communist Manifesto (Cambridge University Press, 1960) 30.).
80 See, eg, Carse (n 57); Rankin (n 57).
81 World Bank, World Development Report 1994: Infrastructure for Development (1994) iii, online: https://elibrary.worldbank.org/doi/abs/10.1596/978-0-1952-0992-1.
82 On this decision, see supra, section I.
83 G20/OECD (n 7) 15.
84 ‘Asset-Based Structured Finance of Infrastructure Projects’ (n 60) 7.
85 Global Infrastructure Hub (n 22) 8.
86 See Christophers (n 19) ch 4.
87 When considering an infrastructure project, says the Inter-American Development Bank, ‘the first thing MDBs should be asking themselves is ‘will people pay to use it?’ Investors are far more confident in returns when projects have a built- in set of users who are willing to pay.’ (Inter-American Development Bank, ‘Mobilizing Private Capital for Infrastructure: Lessons for Governments, Private Investors, and Multilateral Development Banks | Publications’ (2017) 10–11, online: <https://publications.iadb.org/publications/english/document/Mobilizing-Private-Capital-for-Infrastructure-Lessons-for-Governments-Private-Investors-and-Multilateral-Development-Banks.pdf> accessed 4 October 2021.).
88 G20 (n 45) 4.
89 Ibid. The Roadmap is particularly emphatic in relation to the undesirability of currency controls: ‘Addressing foreign exchange risks of infrastructure projects is of particular importance as infrastructure revenues generally are denominated in local currency, creating mismatches when foreign equity and debt are used in project financing’.
90 Ibid.
91 See, generally, Andrew L Russell and Lee Vinsel, Aeon Essays, ‘Hail the Maintainers’ (2016) online: <https://aeon.co/essays/innovation-is-overvalued-maintenance-often-matters-more>; Lee Vinsel and Andrew L Russell, The Innovation Delusion: How Our Obsession with the New Has Disrupted the Work That Matters Most (Currency, 2020).
92 Akhil Gupta, ‘The Future in Ruins: Thoughts on the Temporality of Infrastructure’ in Nikhil Anand, Akhil Gupta and Hannah Appel (eds), The Promise of Infrastructure (Duke University Press, 2018) 74.
93 Gabor (n 6) 433.
94 Ibid, 440.
95 Ibid, 431.
96 Pistor (n 37) 4.
97 Robert M Cover, ‘Violence and the Word’ (1986) 95 Yale Law Journal 1601, 1612.
98 See Pistor (n 37) 4.
99 Daniela Gabor devises an alternative model along these lines, still with a major state-centered focus: see Gabor (n 6) 435–36.
100 This competition may hinge on the nature of the assets themselves, or on their inherent bankability. But it also may depend on the legal coding of the assets, and the level of protection granted by each state. The Roadmap is, of course, concerned with the latter.
101 This governance move bears some similarities to that proposed by the neoliberal theory of ‘market-preserving federalism’. Barry R Weingast, ‘The Economic Role of Political Institutions: Market-Preserving Federalism and Economic Development’ (1995) 11 Journal of Law, Economics, & Organization 1; for an application to the global sphere and critique, see Adam Harmes, ‘New Constitutionalism and Multilevel Governance’ in Stephen Gill and A Claire Cutler (eds), New Constitutionalism and World Order (Cambridge University Press, 2014): it makes de-regulation self-enforcing by creating a mismatch between the level in which the state can potentially regulate these infrastructures (the national/local) and the level in which the relevant infrastructural decisions are made (the global).
102 Benedict Kingsbury, Nico Krisch and Richard B Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary Problems 15, 25.
103 Ibid, 17.
104 Nico Krisch and Benedict Kingsbury, ‘Introduction: Global Governance and Global Administrative Law in the International Legal Order’ (2006) 17 European Journal of International Law 1, 1.
105 Sabino Cassese, ‘Governing the World’ in Research Handbook on Global Administrative Law (Edward Elgar Publishing, 2016) 506.
106 Ibid.
107 Ibid. For the idea of the ‘disaggregation of the state’ see, generally, Anne-Marie Slaughter, A New World Order (Princeton University Press, 2004).
108 Kingsbury, Krisch and Stewart (n 103) 17.
109 Joseph HH Weiler, ‘The Geology of International Law – Governance, Democracy and Legitimacy’ (2004) 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 547, 550.
110 Ibid.
111 Kingsbury, Krisch and Stewart (n 103) 26.
112 Ibid.
113 It is important to note that my argument focuses on the first claim of the GAL project, that is, on the emergence of a ‘global administrative space’ but is agnostic on the application of its second claim, that is, on whether principles of administrative law will emerge as a result of the need for legitimation of decision-making in this field. And even if such principles do emerge, the differences between them and the effective requirements of democratic legitimacy are worth taking into account. See, eg, Benedict Kingsbury, Megan Donaldson and Rodrigo Vallejo, ‘Global Administrative Law and Deliberative Democracy’ in Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of the Theory of International Law (Oxford University Press, 2016); Doreen Lustig and Eyal Benvenisti, ‘The Multinational Corporation as “the Good Despot”: The Democratic Costs of Privatization in Global Settings’ (2014) 15 Theoretical Inquiries in Law 125, 153–56.
114 See, eg, Zachary Elkins, Andrew T Guzman and Beth A Simmons, ‘Competing for Capital: The Diffusion of Bilateral Investment Treaties, 1960–2000’ (2006) 60 International Organization 811.
115 See, eg, Beth A Simmons and Zachary Elkins, ‘The Globalization of Liberalization: Policy Diffusion in the International Political Economy’ (2004) 98 American Political Science Review 171.
116 World Economic Forum (n 67) 10.
117 See Heslop (n 43) 13. On the general trend of subordination of public to private interest, see, eg, Lo Giacco (n 42) 3.
118 G20 (n 45) 1.
119 The reconstruction of the ‘infrastructure gap’ as the divide between the existing infrastructure and that needed to participate in the global economy is not always explicit in the policy documents, but it is usually implicit. However, one OECD document states that infrastructure investment ‘is all the more relevant as production systems are increasingly taking place across continents, which requires scaling up infrastructure to connect developing countries with global value chains that could spur their economic growth’ (OECD, OECD Report to G20 Finance Ministers and Central Bank Governors, Official Development Finance for Infrastructure Support by Multilateral and Bilateral Development Partners (2015) 8, online: <www.oecd.org/g20/topics/development/Official-Development-Finance-for-Infrastructure.pdf>).
120 It could be argued that this system, in which the rules are set through global processes, is still better than an anomic world, in which each state or local authority is out on its own negotiating the terms of their investment agreements with potential financiers. Without global rules of the kind fostered by the Roadmap, a ‘race to the bottom’ could unfold, and competition could force states to accept rapacious contractual terms to finance the infrastructure they need. I do not fully disagree with this argument, which may on certain occasions be right. However, empirical studies have proven that the race to the bottom patterns are significantly mitigated by dynamics reminiscent of a Polanyian double-movement, with strong limits imposed by the action of domestic constituencies, particularly in democratic states. In this context, standardisation may end up demanding more, and not less, from states, particularly as it influences local perceptions around the amount and kind of infrastructure needed. On the limits of the race to the bottom see, eg, Geoffrey Garrett, ‘Global Markets and National Politics: Collision Course or Virtuous Circle?’ (1998) 52 International Organization 787, 788–89; Nita Rudra, Globalization and the Race to the Bottom in Developing Countries: Who Really Gets Hurt? (Cambridge University Press, 2008) 9.
121 This enforcement mechanism is compatible with the existence of excess liquidity in the market, since states must still abide by the rules to secure the investments. In the context of this ‘savings glut’, however, the competition among states is not a zero-sum game: they do not really compete against each other, but only against other potential investment opportunities of the financiers.
122 For a similar caveat in a different field, see Beth A Simmons, ‘The International Politics of Harmonization: The Case of Capital Market Regulation’ (2001) 55 International Organization 589, 601.
123 Though the BRI also includes some financialisation of infrastructure; see Imogen T Liu and Adam D Dixon, ‘What Does the State Do in China’s State-Led Infrastructure Financialisation?’ (2022) 22 Journal of Economic Geography 963.
124 The recent, post-pandemic, green infrastructure initiatives in the United States and the European Union are good examples of how public funding can become an alternative for the asset class model. However, even those initiatives include leveraging substantial amounts of private financing. See Christophers (n 19) ch 6.
125 OECD, ‘Private Financing and Government Support to Promote Long Term Investments in Infrastructure’ (2014) 6 online: <www.oecd.org/daf/fin/private-pensions/Private-financing-and-government-support-to-promote-LTI-in-infrastructure.pdf>. For a review of the narrative of infrastructure as a determinant of growth and development, see Rankin (n 57).
126 International Monetary Fund (n 11) ix.
127 The reference in the literature is Paul J DiMaggio and Walter W Powell, ‘The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields’ (1983) 48 American Sociological Review 147. See also, Frank Dobbin, Beth Simmons and Geoffrey Garrett, ‘The Global Diffusion of Public Policies: Social Construction, Coercion, Competition, or Learning?’ (2007) 33 Annual Review of Sociology 449.
128 ‘Such mechanisms’, wrote DiMaggio and Powell in 1983, ‘create a pool of almost interchangeable individuals who occupy similar positions across a range of organizations and possess a similarity of orientation and disposition that may override variations in tradition and control that might otherwise shape organizational behavior’ (DiMaggio and Powell (n 128) 152.). See also Dobbin, Simmons and Garrett (n 128) 452–53.
129 See, eg, Navroz K Dubash and Bronwen Morgan, ‘The Rise of the Regulatory State of the South’ in Navroz K Dubash and Bronwen Morgan (eds), The Rise of the Regulatory State of the South. Infrastructure and Development in Emerging Economies (Oxford University Press, 2013) 8.
130 G20 (n 45) 3.
131 See, eg, OECD, ‘Recommendation of the Council on Principles for Public Governance of Public-Private Partnerships’ (2012) 2, online: www.oecd.org/governance/oecd-recommendation-public-privatepartnerships.htm; World Bank, ‘Country Readiness Diagnostic for Public-Private Partnerships’ (2016) online: <http://pubdocs.worldbank.org/en/943711467733900102/Country-PPP-Readiness-Diagnostic-Tool.pdf>.
132 G20 (n 45) 3.
133 Indeed, the very approval of the Roadmap and the definitive installation of the financialization of infrastructure agenda can be seen as a result of the ‘unprecedented’ consensus in the work of these institutions to establish mechanisms to mobilize private capital for infrastructure. For an analysis of this consensus, see, eg Nancy Alexander (n 6).
134 ‘Official Development Finance’ (n 120) 25. See also Kate Bayliss and Elisa Van Waeyenberge, ‘Unpacking the Public Private Partnership Revival’ (2018) 54 The Journal of Development Studies 577, 4.
135 See, eg, ‘Official Development Finance’ (n 120) 25; Pablo Pereira Dos Santos and Matthew C Kearney, Inter-American Development Bank, ‘Multilateral Development Banks’ Risk Mitigation Instruments for Infrastructure Investment’ (2018) Inter-American Development Bank Technical Note IDB-TN-1358; Chiara Broccolini and others, ‘Mobilization Effects of Multilateral Development Banks’ (2018) Inter-American Development Bank Discussion Papers 3 <https://publications.iadb.org/handle/11319/9122>.
136 Arezki and others (n 4) 243.
137 Ibid.
138 Ibid, 242–43.
139 ‘Official Development Finance’ (n 120) 20.
140 For a review of PPF roles, see Reinaldo Fioravanti, Carolina Lembo and Akash Deep, Inter-American Development Bank, Filling the Infrastructure Investment Gap: The Role of Project Preparation and Structuring Facilities (2019) online: <https://publications.iadb.org/en/filling-infrastructure-investment-gap-role-project-preparation-and-structuring-facilities>.
141 G20, ‘Leaders’ Communiqué Brisbane Summit, 15–16 November 2014’ (2014) online: <https://cdn.gihub.org/uat-umbraco/media/1071/g20-leaders-summit-communique_brisbane-2014.pdf>.
142 See, e.g. Economist Impact, ‘The Infrascope. Measuring the enabling environment for public-private partnerships in infrastructure’, online: https://impact.economist.com/projects/infrascope; Global Infrastructure Hub, ‘InfraCompass. A G20 Initiative’, online: https://infracompass.gihub.org.
143 Kevin Davis, Benedict Kingsbury and Sally Engle Merry, ‘Indicators as a Technology of Global Governance’ (2012) 46 Law & Society Review 71, 99–100.
144 Arezki and others (n 4) 243.
145 ‘Following the trend, a number of new infrastructure indices have been emerging since the mid 2000s, using different index methodologies, and covering different regions, countries, sectors, company sizes, etc. Providers include Macquarie/FTSE, S&P, UBS, CSFB, Dow Jones/Brookfield and MSCI’ (Georg Inderst, European Investment Bank, Economics Department, ‘Infrastructure as an Asset Class’ (2010) 3/2010 74–75, online: <https://ideas.repec.org/p/ris/eibpap/2010_003.html>).
146 See, eg White & Case, ‘Infrastructure, Transportation and Logistics’, online: www.whitecase.com/law/industries/infrastructure; DLA Piper, ‘Infrastructure, Construction and Transport’, online: www.dlapiper.com/en/us/services/projects-energy-and-infrastructure/.
147 For an ethnographical account of the changes in the political economy of the ‘infraspace’ resulting from the entrance of institutional investors to the field, see Heslop (n 43).
148 Gabor (n 6) 453.
149 Christophers (n 19) 7.
150 Jim Kane, ‘Here for a Good Time, Not a Long Time: Asset Managers at the Infrastructure Party’ (2023) 32 New Labor Forum 104, 106.
151 See, generally, Christophers (n 19).
152 For a review of the broader literature on the impact of investment law upon investment decisions, see, eg, Lauge N Skovgaard Poulsen, ‘The Investment Treaty Regime’ in Jon CW Pevehouse and Leonard Seabrooke (eds), The Oxford Handbook of International Political Economy (2022). The few references to dispute settlement in the broader global policy literature tend to be marginal and somewhat skeptical. See, eg, G20/OECD (n 7) 32.
153 For a review of the many critiques and the current reform proposals to the investment regime, see, eg, José E Alvarez, ‘ISDS Reform: The Long View’ (2022) 36 ICSID Review—Foreign Investment Law Journal 253.
154 Kingsbury, Krisch and Stewart (n 103) 16.
155 See, generally, Kingsbury and Maisley (n 49).
156 Ibid, 358.
157 Kingsbury (n 50) 181–82.
158 Hannah Appel, Nikhil Anand and Akhil Gupta, ‘Introduction: Temporality, Politics and the Promise of Infrastructure’ in Nikhil Anand, Akhil Gupta and Hannah Appel (eds), The Promise of Infrastructure (Duke University Press, 2018) 6.
159 Ibid, 20.
160 Winner (n 50) 127.
161 Ibid.
162 It is worth noting that my normative claim is focused on the conduct of the G20, as a global body, and not on the conduct of specific states. As a matter of non-ideal theory, states may be right in financialising their infrastructure projects, given the sub-optimal global order in which they have to operate. The G20, on the contrary, should work to deconstruct such an order.
163 Thomas Nagel, ‘The Problem of Global Justice’ (2005) 33 Philosophy & Public Affairs 113.
164 Terry Macdonald, Global Stakeholder Democracy. Power and Representation Beyond Liberal States (Oxford University Press, 2008) 131.
165 Archon Fung, ‘The Principle of Affected Interests: An Interpretation and Defense’ in Jack Nagel and Rogers Smith (eds), Representation: Elections and Beyond (University of Pennsylvania Press, 2013) 247.
166 Mark E Warren, ‘The All Affected Interests Principle in Democratic Theory and Practice’ (2017) IHS Political Science Series Working Paper 3, online: <www.ssoar.info/ssoar/bitstream/handle/document/54967/ssoar-2017-warren-The_All_Affected_Interests_Principle.pdf?sequence=1>.
167 Kingsbury and Maisley (n 49). See also Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford University Press, 1997); Nahuel Maisley, ‘El Derecho de La Sociedad Civil a Participar En La Creación Del Derecho Internacional’ (Tesis Doctoral, Facultad de Derecho de la Universidad de Buenos Aires, 2019) ch 7. For this ‘postulate of public right’, see, generally and classically, Immanuel Kant, The Metaphysics of Morals (Lara Denis ed, Mary Gregor tr, Cambridge University Press, 2nd edn 2017) s 44; Jürgen Habermas, Between Facts and Norms (The MIT Press, 1996) 310.
168 A question could be raised as to whether these publics could then decide to delegate some decision-making on private entities, eg, for reasons of efficiency. The literature on privatisation has warned of both the instrumental and the substantive risks that these dynamics pose for democracy, even when some degree of involvement of private actors in the broad task of governance is indispensable see, eg, Avihay Dorfman and Alon Harel, ‘The Case Against Privatization’ (2013) 41 Philosophy & Public Affairs 67; Lustig and Benvenisti (n 114); Martha Minow, ‘Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, Democracy’ (2005) 46 Boston College Law Review 989; Paul R Verkuil, Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do about It (Cambridge University Press, 2007). The case of the Roadmap is different, however, because no such explicit democratic delegation and supervision is foreseen (as in the typical case of privatisation).
169 Kingsbury and Maisley (n 49) 354–64.
170 Ibid, 364–68.
171 G20 (n 1) para 1.
172 Ibid, 3.
173 Ibid.
174 Ibid.
175 On the notion of ‘publics’ and its application to this discussion, see Kingsbury and Maisley (n 49) 357–62.
176 Appel, Anand and Gupta (n 159) 3.
177 Gupta (n 93) 63.
178 Kregg Hetherington, ‘Surveying the Future Perfect. Anthropology, Development and the Promise of Infrastructure’ in Penelope Harvey, Casper Jensen and Atsuro Morita (eds), Infrastructures and Social Complexity (Routledge, 2017). ‘Infrastructure’, one anthropologist explained, ‘is the imagined materialization of this thing called an economy’ (Hannah Appel, ‘Infrastructural Time’ in Nikhil Anand, Akhil Gupta and Hannah Appel (eds), The Promise of Infrastructure (Duke University Press, 2018) 49).
179 Penelope Harvey, ‘Infrastructures in and out of Time: The Promise of Roads in Contemporary Peru’ in Nikhil Anand, Akhil Gupta and Hannah Appel (eds), The Promise of Infrastructure (Duke University Press, 2018) 82.
180 Christina Schwenkel, ‘The Current Never Stops: Intimacies of Energy Infrastructure in Vietnam’ in Nikhil Anand, Akhil Gupta and Hannah Appel (eds), The Promise of Infrastructure (Duke University Press, 2018) 106.
181 Nikhil Anand, Akhil Gupta and Hannah Appel (eds), The Promise of Infrastructure (Duke University Press, 2018).
182 Appel, Anand and Gupta (n 162) 3.
183 Ibid, 20.
184 O’Neill (n 56) 633.
185 Ibid, 639.
186 On these planetary predicaments, see, generally, Dipesh Chakrabarty, The Climate of History in a Planetary Age (The University of Chicago Press, 2021).
187 Kingsbury and Maisley (n 49) 354.
188 On tax reform efforts, see, eg, Reuven Avi-Yonah and Eran Lempert, ‘The Historical Origins of the Multilateral Tax Convention’ (2023) University of Michigan Law & Economics Working Papers, online: <https://repository.law.umich.edu/law_econ_current/244>. On loss and damage, see, eg, Angus William Naylor and James Ford, ‘Vulnerability and Loss and Damage Following the COP27 of the UN Framework Convention on Climate Change’ (2023) 23 Regional Environmental Change 38.