Ersatz Normativity or Public Law in Global Governance: The Hard Case of International Prescriptions for National Infrastructure Regulation.

Takingglobalprescriptions for national infrastructure regulation as a case study, this Article examines the nature and implications of the mingling of law, governance, and economics that is increasingly prevalent in global regulatory governance. It focuses on three sets offormally non-binding but influential instruments issued in the 2000s by the World Bank, the OECD, and UNCU RAL, each of which promotes far-reaching reforms to existing national public law and institutions. The Article excavates these instruments' unarticulated theories of the state and its roles, and their visions of the nature andpreferredfeatures of law. It explores the use by these instruments of law-like hierarchies of norms and their deployment of legal concepts within a hybrid vocabulary of law, economics, and policy disdplines. This may amount merely to ersat% normativity. But this Article posits that\ by bringing discourses of public law and regulatory governance into relation, instruments of this kind could open possibilities for renovation of traditionalpublic law within the state through the opening to an indpient global public law. The production and use of these instruments largely escapes the reach of orthodox public and private international law, and of national constitutional or administrative law. Conceivably, global public law could transform the ways in which such prescriptions are developed, and their invocation in particular cases, and might eventually contribute to the reimagination or reinvigoration of public law as a distinct mode of ordering. To assess whether these are possibilities, we take the infrastrudure provisions as a "hard case " against which to analyse two approaches to global public law: "international public authority" and "global administrative law. " The infrastructure case illustrates significant limits in the current doctrinal framings and institutional spedfidties of these approaches, and indicates the importance of future struggles among multiple different political and legalprojects concerning the roles of law in global regulatory governance. [ABSTRACT FROM AUTHOR]