Chapter 1: Sovereign Entities Investing Abroad as Private Entities: Limits of the Conventional Framework
STATE INVESTORS BETWEEN PUBLIC AND PRIVATE, NATIONAL AND INTERNATIONAL LAW 1. The economic crisis which started in 2008 emphasised a significant return of national states in the economies, viewed suspiciously as a relic of the past. In the second half of the last century, states have been gradually losing their economic sovereignty (that was either expressly transferred to international organisations or materially lost) and participating in an advanced jus comune environment where domestic legal systems gradually lose their relevance. Conversely, in the first decade of the 21st Century national states have regained their central position as regulators and as shareholders, both internally (coming into the ownership of big national companies and banks) and internationally (investing abroad in foreign companies and banks). This was due to contingent factors (including the economic crisis) but above all to structural factors. Observers usually view the issue as a Manichaean confrontation between public and private: private companies that interfere with the states’ regulatory or economic sovereignty; public companies that act (abroad) as private ones. According to some authors, the challenge today arises from the usurpation of public power by private companies, and of private power by states. Others argue instead that it arises from foreign public actors wielding public power that reaches across borders, in the form of sovereign investing through instruments of private commerce and in direct (but potentially unfair) competition with private actors. Actually, one should admit that there are not separate political and economic playing fields where states and companies operate respectively....
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