The study of Sovereign Wealth Funds (SWFs) is an unusual approach to constitutional law.
In fact, SWFs are analysed mostly within other scientific fields, such as international law, commercial law and corporate governance, international economics and banking economics, political science (see for example Mezzacapo 2009; Bismuth 2010, 567–606; Bassan 2011; De Bellis 2011, 349–382; Alvaro and Ciccaglioni 2012, 2; Ciarlone and Miceli 2013; Braunstein 2014, 169–180; Bassan 2015a; Wang and Li 2016, 377–400), while constitutional law scholars have seldom examined this topic.
But what is a Sovereign Wealth Fund and why is it interesting to consider this phenomenon from a constitutional perspective and specifically in the context of the relationships between Constitutions and global financial crisis?
To answer the first question, SWFs “are special purpose investment funds or arrangements that are owned by the general government. Created by the general government for macroeconomic purposes, SWFs hold, manage, or administer assets to achieve financial objectives, and employ a set of investment strategies that include investing in foreign financial assets”.
The meaning of this formal definition, established in the “Santiago Principles” (certain generally accepted principles and voluntary practises, written in 2008 by an international working group of SWFs and facilitated by the International Monetary Fund) and the story of SWFs will be analysed briefly in next section.
To answer the second question, it is worth remembering that these Funds are some of the most important new actors which have emerged during the global financial crisis of 2008. With their fresh capital, resulting from oil or natural gas revenues rather than export surpluses, SWFs bailed out the banks and companies of western countries (see for example Bortolotti 2013, 3; for a comparative study on SWFs before and after the financial crisis see also Fei, Xu, and Ding 2013, 3). If “the 2008 financial crisis has been producing new constitutional stories” (see Contiades 2013, 1, emphasis in original), SWFs are perhaps one of these stories.
As will be seen over the following pages, the total assets of SWFs had reached over the $ 7 trillion mark in November 2016, although it is not always clear whether SWFs also pursue other aims than financial speculation because they often invest in companies with national strategic interests, for instance in the field of energy or communications. Since SWFs are owned above all by non-democratic States (such as China or Middle Eastern States), it is easy to feel some interest (and concern) for constitutional law.
However SWFs that are owned by democratic States (such as Norway, which holds the largest SWF in the world) also offer a very interesting constitutional perspective, because the issue of SWFs raises some problematic relationships with a range of basic categories of contemporary constitutional law, such as the State sovereignty or fundamental rights protection.
In these situations, and in others that will be analysed below, concerning the links between SWFs and the fundamental rights of future generations and the provision for SWFs in the Constitution, this paper will attempt to prove that there can be no power without responsibility, and that this tenet also applies to the power of the most powerful actors in the globalized era (including SWFs, rating agencies, multinational corporations and international technocratic bodies such as International Monetary Fund, European Investment Bank or European Central Bank). This idea is consistent both with the perspective that constitutionalism has shown at least since 1789 (see above all article 16 of “Declaration of the Rights of Man and of the Citizen” which provides that: “Any society in which the guarantee of the rights is not secured, or the separation of powers not determined, has no constitution at all”) and with the processes and the paradigm of the so-called global constitutionalism and with the consequent spread of constitutionalist features and principles in international law.
As noted above, SWFs represent one of the most significant institutional players to have emerged during the recent economic and financial crisis, preventing several banks and companies from many European and North American countries from going bankrupt, as they were able to invest massively the huge cash reserves at their disposal.
SWFs have been consigned to relative obscurity for a long time, attracting the attention only of experts. It has only been with the financial crisis that SWFs have become known as actors also to ordinary people. Moreover, partly as a result of their strengthened position, SWFs are displaying increasingly obvious features which, in addition to the size of the real economy and financial economy, are relevant for constitutional law. This subject thus cannot ignore the new forms of influence, which have been accentuated by today’s economic crisis, of a power which can no longer be simply classified as “political”, but which has also become “economic” and “financial”.
As noted before, the aim of this paper is to contextualise the study of SWFs within constitutionalism, which is construed as a limit to the exercise of political power, whatever its source of inspiration (see Rosenfeld 2014, 178 and 192, who stresses that modern constitutionalism consists “essentially in limitations of the powers of government, adherence to the rule of law, protection of fundamental rights, and guarantees for the maintenance of an adequate level of democracy” and that, in the wake of the economic crisis and in the ambit of European Union institutions, transnational and global constitutionalism is possible, but it “should not be conceived in terms of a mere expansion or adaptation of nation-State constitutionalism”. See also Waldron 2010; Tushnet 2009). At the same time, constitutionalism is seen as the last bastion against tyranny, whilst also being able to legitimise the various political regimes created over the centuries.
(Constitutionalism and Sovereign Wealth Funds, Global Jurist, ed. De Gruyter, martie 2017, pentru obținerea de acces FULL, a se vedea aici)