Tu Globalista: Lo que sucede en el mundo.

In recent days I came across a book called «Humanity in a Creative Universe,» written by Stuart Kauffman. This book can be located in the complexity theory literature. An insightful book that seeks to explain, and explains quite well, that in real life, we cannot predict how things will become. In other words, we are just blind to the future.

One of the passages that I read was about the Adjacent Possibles, that we are in our constant interactions as humanity creating ever new actuals, and these new actuals enable multiple paths that direct to adjacent possibles. Not that they cause evolution but possibilities, in which we flow directly into it, sometimes, and possibly most of the time we get into it without knowing it.

The evolution of the biosphere, of the economy, of legal law systems, of international affairs, of art and poetry and their histories, are all «stories» of new actuals that create new adjacent possibles into which the biosphere and we become. Typically we do not know the very adjacent possibilities we create and then flow into it. These histories above the level of atoms where the universe is nonergodic are not just happenings, or willy-nilly; they are largely unprestatable unfoldings where what is already Actual creates the possibilities the biosphere and we become.

This quote from Kauffman connects with the idea developed by Joost Pawelyn about the emergence of foreign investment law as a type of emergent phenomenon that occurred through steps of evolution. In other words, international investment law emerged from an organic process of increments and accidents, which were based on first rules on diplomatic protection, then bilateral treaties on friendship, commerce, and navigation, to the BITs and MITs that we are more familiar with.

International investment law was created not by design but per accident, not per causas. International investment law might have grown mainly from cumulative bilateral agreements, as well as through bilateral disputes capable of being resolved under different rules of arbitration.

The reality of how international investment law has evolved brings an element of an adjacent possible to international trade. Currently, it seems that the politics carried out by the current administration of the White House are to revert back from multilateralism to bilateralism. With different standards of treatment depending on the country and the type of goods and services involved. This treatment seems to have permeated the practices of other countries, perhaps under pressure. For example, Mexico just increased a 50% import tax on vehicles coming from China. This might be, and possibly is, a violation of WTO principles such as the Most Favored Nation principle.

If international trade continues on this path of bilateralism, most likely the multilateralist-centralized path taken by the WTO will be lost and will make way for a bilateralist type of «structure,» such as the type of bilateral structure seen in international investment law, with rules applying to some countries but not to others, with benefits extending to some but not all. A close knit of interrelated treaties, making trade more difficult to navigate. As well as a series of bodies for resolving international disputes, with ad hoc tribunals, rather than a standing body for resolution of trade disputes under the WTO DSU, and the inoperative WTO AB. Some of this is already happening with the MPIA (Multi-Party Interim Appeal Arbitration Agreement) which is based on Article 25 of the Dispute Settlement Understanding. This does not rule out the possibility for parties to the WTO to create their own ad hoc arbitrations.

The increase of bilateralism in trade and the adjacent possible of bilateralism in international investment law may be a boundary and an enablement. In Kauffman’s words, «New Actuals arise and do not cause, but enable new Adjacent Possibles, new pathways or opportunities for evolution.» The adjacent possible of multilateralism in trade might be bilateralism in international investment law. Currently is hard to tell, what would happen next. But as actuals are created, we will flow into it, mostly without knowing.