and investment exerts pressure on other aspects of constitutional arrangements,
including impartial adjudication of disputes, guarantees against expropriation, and
the transparency and predictability associated with the rule of law.^27
There are two more specific avenues through which horizontal convergence may
occur. One encompasses different types of bilateral and multilateral arrangements
between states. Sanctions imposed by one state on another may be designed to
influence constitutional behaviour.^28 Development assistance from a donor to a
recipient state also may have constitutional implications. Assistance programmes
may be conditioned on general political reforms: progress with participatory dem-
ocracy, human rights and the rule of law.^29 Assistance of a different kind offers
scholarships to undertake tertiary study in the donor country, with the potential to
influence the constitutional views of future leaders. Assistance to a recipient state
that is making or substantially changing its constitution may affect the choices that
are made more directly. The experts provided, field trips offered, NGOs funded
and other forms of technical advice made available are likely to promote the
constitutional experience of the donor state, whether deliberately or not. There is
growing awareness of the need for donors to be sensitive to questions of local
ownership and constitutional fit in providing assistance for these purposes.
30
For the moment, however, this remains an avenue for the adoption or adaptation
across jurisdictional lines of constitutional institutions and principles ranging from
the relationship between executive and legislature to the manner of a federal
division of power to the form of constitutional review.
A second discrete avenue for constitutional transfers of a different kind is
constitutional adjudication. Reference to decisions of foreign courts, which
United States scholar Vicki Jackson has termed judicial ‘engagement’,^31 is most
common in cases involving constitutional rights protection but is familiar also
in other contexts: the meaning of judicial independence, the propriety of pro-
spective overruling, and the unconstitutionality of constitutional amendments,
to identify only a few. Engagement is a deliberately neutral term and its outcomes
(^27) Such ‘bottom-up’ forces are examined in Tushnet, ‘Inevitable globalization’, drawing on
Law, ‘Globalization and the future of constitutional rights’.
(^28) Under the Australian Autonomous Sanctions Act 2011 , for example, travel, financial and
other sanctions can be imposed on selected countries for purposes that may include
promotion of democracy and the rule of law: Craig Emerson MP, ‘Australia removes 82
people from the Zimbabwe sanctions list’, press release, 5 March 2012 ,www.foreignmin-
ister.gov.au/releases/ 2012 /cemr 120305 .html(viewed 6 March 2012 ).
(^29) Andrea Schmitz, ‘Conditionality in development aid policy’, SWP Research Paper 7
(Berlin 2006 ), 8 – 10 , http://www.swp-berlin.org/fileadmin/contents/products/research_papers/
2006 _RP 07 _smz_ks.pdf(viewed 7 March 2012 ).
(^30) International IDEA, ‘Constitution building after conflict: external support for a sovereign
process’, policy paper, May 2011 ,www.idea.int/publications/constitution-building-after-
conflict/index.cfm(viewed 7 March 2012 ).
(^31) Vicki C. Jackson,Constitutional Engagement in a Transnational Era(Oxford: Oxford
University Press, 2010 ).