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

Taking global prescriptions 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 of formally non-binding but influential instruments issued in the 2000s by the World Bank, the OECD, and UNCITRAL, 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 and preferred features of law. This may amount merely to ersatz 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 traditional public law within the state through the opening to an incipient global public law.