The concept of lex mercatoria This has begun to take firm hold in contemporary analyses of the Latin American and Caribbean legal, political, and economic context. The return of International Financial Institutions (International Monetary Fund, World Bank, and Inter-American Development Bank) to countries like Argentina and Ecuador, as well as the proliferation of trade and investment treaties within the region and between the region and other economic blocs, is linked to the strong neoliberal shift in the orientation of public policies, primarily, but not exclusively, those with social and environmental content, as well as to a general decline in the levels of protection and guarantees of human rights and the rights of nature, with pronounced impacts on gender inequalities.

The collaboration of Latin American and Caribbean countries with international financial institutions, as well as the signing of trade and investment treaties—fundamental pillars of the protection and promotion of international trade and foreign investment—are the cornerstones of the concept of lex mercatoria (Zubizarreta, Ramiro, 2016). This Lex Mercatoria, Characterized also by its high degree of emancipation from state regulatory powers (Guamán, González, 2018), it is experiencing both qualitative and quantitative growth, linked to the expansion of processes of “corporate capture of the state.” This concept is presented as a fundamental element for explaining the interaction between the different actors that come together and intervene in the production of this lex mercatoria (specifically, but not exclusively, International Financial Institutions –hereinafter: IFIs–, transnational companies and governments) as well as their different instruments, benefits and the impact of their actions on human rights.

The analysis of the development and current impact of the lex mercatoria The issue in the region must be approached from a historical and comparative perspective. The historical foundations are clear: on the one hand, there is extensive literature on the so-called “Washington Consensus,” implemented in the region since the 1980s—although its origins date back to the 1970s within the context of the civic-military dictatorships of the Southern Cone—which allows us to determine the guidelines and consequences of the International Monetary Fund's actions in the region (Puello Socarrás, 2015; Nemiña, 2018). A review of the policies promoted within this framework demonstrates—and this is one of the group's starting hypotheses—the complementarity of its guidelines with the other vector of the phenomenon that will be the subject of study: first- and second-generation trade and investment agreements.

These agreements began to proliferate in the region starting in the 1990s (of the 498 bilateral investment agreements currently in force in Latin American and Caribbean countries, 312 were signed in the 1990s). According to specialized literature, these agreements increased the power of transnational corporations in the region, reduced tariffs, opened markets, protected the privatization of public services, facilitated the introduction of agrochemicals into fields, exacerbated environmental damage, made employment more precarious, and granted extraordinary privileges to foreign investors to sue states (Ghiotto, Olivet, Mühler, 2019; Guamán, 2015, 2016). In fact, it is possible to affirm that these treaties have helped to ensure, even during the post-neoliberal cycle, the partial maintenance of the protection of foreign investment, using the multimillion-dollar compensations granted to transnational companies through investor-state protection arbitration instruments. 

Throughout the cycle of post-neoliberal governments that began in the region at the start of this century, regulatory guidelines were developed and international policy decisions were adopted to align trade promotion and protection policies and foreign investment attraction with the fulfillment of other constitutional objectives, such as good living (buen vivir) and the implementation and development of social rights (Ramírez, 2012). Simultaneously, during the post-neoliberal cycle, social policies, public services, regulatory frameworks for the protection of social and labor rights, and, in general, policies aimed at poverty reduction and income and wealth distribution were promoted, albeit with uneven but progressive development. These policies clashed with the interests of extractive transnational corporations, protected by the aforementioned investment agreements. Indeed, and partly due to these types of policies, Latin American countries have received a total of 267 lawsuits from foreign investors, representing 28% of those known worldwide to date. Argentina, Venezuela, and Mexico are the first, third, and sixth most sued countries globally through the ISDS mechanism (Ghiotto, Olivet, Mühler, 2019). Many of these lawsuits relate to human rights and the rights of nature, such as the right to water (Echaide, 2014 and 2017) or the paradigmatic Chevron case (Guamán, 2019). The numerous awards against states demonstrate the impact of Lex Mercatoria and its paralyzing effect on public policies and legal frameworks for the protection of state and international human rights.

Following the recent political changes in the region, neoliberal policies are once again expanding through the two mechanisms of the lex mercatoriaThis again demonstrates the close complementarity of the actions of the IFIs (the IMF, the World Bank, and the IDB) with the promotion of new trade and investment treaties.

The first mechanism is clearly observed with the return of the International Monetary Fund to the region. Analyses show how, despite the errors acknowledged by the IMF in cases like Greece, in practice similar policy lines continue to be recommended, regardless of the context or the repetition of failed economic ideas (Ugarteche, 2018; Nemiña, 2018; Lehndorff, 2015). Furthermore, agreements between states and IFIs are leading to a growing questioning of the very basic structures of representative democracy (Fariñas, 2018).

The second mechanism, trade and investment treaties, has been strongly revitalized in recent years, demonstrating a race to sign these agreements both within the region and with other economic blocs (particularly the European Union). The new agreements have specific characteristics that, in conjunction with the policies promoted by the IFIs, allow for a significant strengthening of the lex mercatoria (Ghiotto, Guamán, 2019). 

The consequences of the expansion of this new “order of capital” (Pistor, 2019) are not limited to the phenomena of social and democratic dispossession but constitute one of the pillars supporting the architecture of impunity that, in Ceceña's words, allows large corporations (the central subject of contemporary capitalism) as globalized power entities to subordinate legal systems, manipulate the law, subjugate state powers, and devastate territories, with a direct impact of their activities on human rights (Ceceña, 2018). Thus, the case of the Brumadinho dam collapse, owned by the mining company Vale SA, in southeastern Brazil in January 2019, which caused a toxic spill and the death and disappearance of more than 300 people, is illustrative and has become the new paradigm of corporate crimes in the region.

In this context, the working group will develop five fundamental lines of research, all of them connected and interdisciplinary.

Line 1: International Financial Institutions, Human Rights, and Democracy. This group will undertake a multidisciplinary, diachronic, and comparative analysis of the intervention of international financial institutions (particularly the IMF) and their impact on public policy models and guarantees of social rights, as well as on models of representative democracy in the area of ​​regulatory production in the region. The research will focus on the period from the 1980s to the present and on the cases of Argentina, Ecuador, and Brazil, with special emphasis on the study of labor reforms and the evolution of social policies and public services. A comparison will also be made with the adjustments resulting from the Troika's actions in Greece, Spain, and Portugal (Guamán & Noguera, 2015). Furthermore, the most recent guidelines of financial institutions regarding the promotion of trade and investment treaties and the use of ISDS will be analyzed in particular. 

Line 2: Protection of foreign investment, new-generation trade and investment agreements, public policies, and social and labor rights. This line will address the analysis of new-generation treaties and agreements that have been signed or are under development in the region. It will primarily examine the effects on public services and social policies, as well as the structure and potential consequences of implementing new regulatory cooperation and investment facilitation mechanisms, questioning their impact on models of representative democracy. The agreements under examination will be particularly the following: Mercosur-EU, TPP-11, the Pacific Alliance, and the most recent bilateral agreements in the Southern Cone. Special attention will be paid to the use of investment arbitration mechanisms and their economic and social consequences, analyzing both ongoing and recently resolved claims.

Line 3: Transnational Corporations, Corporate Crimes, Human and Environmental Rights, and Corporate Impunity. This line will analyze the main violations of human and environmental rights by transnational economic actors, both public and private. In selected cases, the lines will examine, on the one hand, the connections of these transnational corporations with the Lex Mercatoria (public contracts, financing through International Financial Institutions, particularly the IDB) as well as the geopolitical implications of the behavior of TNCs and the construction of “archipelago territories”; on the other hand, they will examine the legal and regulatory obstacles to victims' access to justice that underpin corporate impunity.

Line 4: Impact of the Lex Mercatoria on Women. This line will analyze the specific impacts of the aforementioned vectors (austerity policies, labor reforms, liberalization of agricultural trade, use of investment arbitration, impunity for corporate crimes, etc.) on structures of gender inequality. It will follow the line of the most recent studies on the subject (Partenio, Laterra, and Ghiotto, 2018: Rodríguez, 2019). Specifically, the group will address the phenomenon of maquiladoras and export free zones in Central America and the Caribbean, their recent dynamics and the impact of these export enclaves on local labor markets, paying attention to the labor insertion methods of women, as well as the living and working conditions of these workers, their families and communities. 

Line 5: Alternatives and resistance processes: in this line, among other issues, the following questions will be analyzed:

- Reforming international financial institutions: proposals to ensure their actions are subject to respect for human rights and the environment. Ways for state-level responses to the imposition of new public policy guidelines and regulations by IFIs

- Proposals for the promotion of trade and investment that are compatible with the defense of human rights, in particular gender equality, and of nature

- Proposals for the establishment of binding international standards to ensure the accountability of transnational corporations for human rights abuses. Monitoring of the process of Resolution 26/9 in the United Nations Human Rights Council

- Development of proposals for action in conjunction with social movements and citizen campaigns to denounce human rights and environmental violations by transnational corporations and support in the defense of victims    

The interdisciplinary nature of the proposed research is evident; the topic has been approached from the perspectives of legal criticism, sociology, political science, and international political economy, which intersect to analyze the origins, foundations, structure, and impacts of the Lex Mercatoria.

Defining the concept itself is one of the group's main challenges. Adopting the most widely accepted definition makes it possible to define... lex mercatoria as a new global economic and legal order (Hernández Zubizarreta, Ramiro, 2016 and Hernández Zubizarreta, 2017) that comprises a broad set of international law norms, but also a wide network of national norms, primarily aimed at promoting trade and protecting the interests of foreign investors. Thus, this new global law (Capital Code In the words of Pistor (2019), it integrates trade and investment agreements, contracts signed by large corporations, the rules, regulations, adjustment policies, and conditional loans of International Financial Institutions (IFIs), and their state development regulations, including even conflict-of-laws rules that ensure the recognition of the rights of large economic actors—those capable of using them—in almost any part of the world. In other words, it is a global regulatory network that allows transnational capital a permanent choice of the rules that benefit it (Pistor, 2019). 

The study of the impacts of this Lex Mercatoria in the region will be analyzed, as indicated in the critical location of the study topic, from the analysis of its different components and actors.

Firstly, from the perspective of analyzing the actions of international financial institutions, the analytical framework starts from studies of the actions of IFIs since the 70s and the adjustment programs imposed (Báez, 1992; Michel and Moatti, 2002; Bemb and Nemiña, 2007; Ugarteche, 2018; Nemiña, 2018), to propose a comparative analysis with the current lines of action set out in the IMF agreements (and other instructions such as the IDB or the World Bank) in their agreements with Ecuador or Argentina, evaluating their impacts on public services, labor rights or the protection of nature.

Secondly, from the perspective of trade and investment treaties, one of the most important frameworks is the research on the specific clauses and impacts of NAFTA (Estay, Sotomayor, 1992; Gutiérrez, 1992; Arroyo Picard, 2003), as well as the studies developed with the academic impetus provided by CLACSO at the beginning of the new century, especially in the context of the Continental Campaign against the FTAA, through online courses and the publication of books and articles on this topic. Current circumstances demand a revision of the analysis based on a systematic, regional, and multidisciplinary study. This research group's study is comparable to the one they intend to carry out for three fundamental reasons: firstly, the impact of new regional trade blocs on the regression of social policies developed during post-neoliberal governments (the most paradigmatic case study being Ecuador's entry into the Pacific Alliance); secondly, the introduction of new "new generation" agreements, such as Regulatory Coherence and Trade Facilitation, with regulatory mechanisms that will generate a series of impacts on the normative production mechanisms inherent in representative democracy, impacts that must be carefully analyzed (Guamán and Jiménez, 2016; Ghiotto and López, 2018). Finally, it is essential to undertake a systematic and regional study of how trade liberalization and investment protection, promoted through the signing of international treaties, have reinforced structural gender inequalities (Rodríguez, 2019; Sanchís, 2019).

It has already been pointed out that, as Global Commercial Law, lex mercatoria It constitutes a new economic and legal order that formalizes the economic and political power of transnational corporations (TNCs), granting them normative power (leveraged by the guidelines of IFIs), subordinating institutions and placing them under the protection of international and national public law (Hernández Zubizarreta, 2017This relationship between transnational corporations, the State, and legal norms will be addressed in the Group from different perspectives. On the one hand, the phenomenon of the expansion of the lex mercatoria From the perspective of the relationship between the global market and the behavior of states, with an emphasis on the constitution of non-state transnational actors (IFIs and TNCs), this analysis will be approached from the standpoint of International Political Economy (IPE). New IPE perspectives incorporate into their analysis the actions of private and transnational corporations (Saguier and Ghiotto, 2018) and their impact on development processes, and even the international integration of states within the global economic system (Vivares, 2018). However, there is still a lack of systematic research on these studies; lasting networks that account for the actions of private actors in the public policy arena in Latin American countries have not yet been established.

Secondly, the issue will be addressed using the concept of state capture or corporate capture, a concept aptly promoted by CLACSO. Oxfam has defined it as the “exertion of abusive influence by an extractive elite (or elites)—in favor of their own interests and priorities and to the detriment of the general interest—over the public policy cycle and state agencies (or other regional or international bodies), with potential effects on inequality (economic, political, or social) and on the proper functioning of democracy.” The study of this phenomenon has become one of the most appropriate analytical frameworks for examining the transformative processes impacting the (re)configuration of modes of production and labor realities, and their impact on social inequalities in the region. While the term “state capture” has expanded, it is crucial to consider two dimensions of this phenomenon, which will be addressed here: 1) the mechanisms of state capture and “decapture,” and 2) the premise that the state does not operate as an instrument simply appropriated by the interests of dominant groups, but rather as a terrain constantly contested by social forces, reflecting this balance according to each specific context. Regarding the first dimension, the concept of “state capture” has proliferated, but the phenomenon itself still needs to be studied in terms of the mechanisms that both enable and hinder the possibility of state institutions being dominated by the most powerful groups. This diachronic and longitudinal study will allow us to identify which elements of the post-neoliberal cycle, and which did not, enable the creation of states that were more or less strong enough to resist the influence of power groups linked to international trade and international lending institutions. 

Third, this relationship between IFIs, TNCs, and states will be addressed from a political theory perspective, demonstrating that the axes of material dispossession contained in the Lex Mercatoria are accompanied by a growing process of de-democratization, or, in the words of Nancy Fraser, evidence of the current incompatibility between neoliberalism and democracy (Fraser, 2017). In the words of Ramírez (2019), “we are facing a new historical cycle of global scope in which the neoliberal imperative dissolves its minimal consensual bases and projects itself as a pure form of domination, reluctant to engage in any robust commitment to democracy and the rights of the majority.” This leads us to the concept of “market authoritarianism,” understood as a moment of rupture between the mechanisms of representative democracy and political decision-making in socio-economic and environmental matters. Following Pastor's (2013) observations, we now find ourselves facing a diffuse supranational sovereign, capable of imposing its will through legal/political mechanisms created to its specifications, and permeable and subservient states, captured or complicit, a transnational sovereign that drives the extension of the lex mercatoria circumventing constitutionally established legislative processes. In this regard, it is essential to analyze how the proposals of international financial institutions (IFIs) are not subject to popular approval, nor do they receive validation from a legislative body in many cases, ultimately remaining at the discretion of the executive branch, which mitigates the political cost by claiming an inability to resist the impositions of economic adjustment. Also falling within this framework is the challenge to the basic structures of the rule of law that stem from rulings such as the recent arbitration award in the Chevron v. Ecuador case.

Having thus defined the instruments and actors, the other major focus of the group's work is the analysis of transnational corporations' commission of crimes against human rights and nature, and their use of the Lex Mercatoria and capture processes to maintain impunity for the violations committed. Thus, the complex, transnational structure of these companies, combined with the lack of adequate legal mechanisms and the legal armor that the Lex Mercatoria becomes, constitutes a barrier to effective access to justice for victims of human rights violations (Skinner, G., et al., 2013). The assertion of the essential nature of reparations mechanisms becomes especially important when we move from the relational sphere of the State-human rights to the context of corporations-human rights. Traditional redress mechanisms designed to protect the human rights of individuals and the groups to which they belong from violations committed by the State prove inadequate or inapplicable when the perpetrator is a legal entity. The issue of redress mechanisms in the context of the relationship between human rights and business remains a major challenge in the field of public international law, making the group's work on this topic particularly important from both a theoretical and practical perspective.