Private International Law and Global Governance

Author: Horatia Muir Watt
Publisher: Oxford University Press, USA
ISBN: 9780198727620
Release Date: 2015-01-18
Genre: Law

Taking a critical approach to private international law, this volume examines its function and role in an era of global governance. It asks if private international law has the potential to reassert itself as a significant governance function in respect of new forms of authority beyond the state, and how this might be done.

Private International Law and Global Governance

Author: Horatia Muir Watt
Publisher: OUP Oxford
ISBN: 9780191043383
Release Date: 2014-12-18
Genre: Law

Contemporary debates about the changing nature of law engage theories of legal pluralism, political economy, social systems, international relations (or regime theory), global constitutionalism, and public international law. Such debates reveal a variety of emerging responses to distributional issues which arise beyond the Western welfare state and new conceptions of private transnational authority. However, private international law tends to stand aloof, claiming process-based neutrality or the apolitical nature of private law technique and refusing to recognize frontiers beyond than those of the nation-state. As a result, the discipline is paradoxically ill-equipped to deal with the most significant cross-border legal difficulties - from immigration to private financial regulation - which might have been expected to fall within its remit. Contributing little to the governance of transnational non-state power, it is largely complicit in its unhampered expansion. This is all the more a paradox given that the new thinking from other fields which seek to fill the void - theories of legal pluralism, peer networks, transnational substantive rules, privatized dispute resolution, and regime collision - have long been part of the daily fare of the conflict of laws. The crucial issue now is whether private international law can, or indeed should, survive as a discipline. This volume lays the foundations for a critical approach to private international law in the global era. While the governance of global issues such as health, climate, and finance clearly implicates the law, and particularly international law, its private law dimension is generally invisible. This book develops the idea that the liberal divide between public and private international law has enabled the unregulated expansion of transnational private power in these various fields. It explores the potential of private international law to reassert a significant governance function in respect of new forms of authority beyond the state. To do so, it must shed a number of assumptions entrenched in the culture of the nation-state, but this will permit the discipline to expand its potential to confront major issues in global governance.

Private International Law and Global Governance

Author: Horatia Muir Watt
Publisher: OUP Oxford
ISBN: 9780191043376
Release Date: 2014-12-18
Genre: Law

Contemporary debates about the changing nature of law engage theories of legal pluralism, political economy, social systems, international relations (or regime theory), global constitutionalism, and public international law. Such debates reveal a variety of emerging responses to distributional issues which arise beyond the Western welfare state and new conceptions of private transnational authority. However, private international law tends to stand aloof, claiming process-based neutrality or the apolitical nature of private law technique and refusing to recognize frontiers beyond than those of the nation-state. As a result, the discipline is paradoxically ill-equipped to deal with the most significant cross-border legal difficulties - from immigration to private financial regulation - which might have been expected to fall within its remit. Contributing little to the governance of transnational non-state power, it is largely complicit in its unhampered expansion. This is all the more a paradox given that the new thinking from other fields which seek to fill the void - theories of legal pluralism, peer networks, transnational substantive rules, privatized dispute resolution, and regime collision - have long been part of the daily fare of the conflict of laws. The crucial issue now is whether private international law can, or indeed should, survive as a discipline. This volume lays the foundations for a critical approach to private international law in the global era. While the governance of global issues such as health, climate, and finance clearly implicates the law, and particularly international law, its private law dimension is generally invisible. This book develops the idea that the liberal divide between public and private international law has enabled the unregulated expansion of transnational private power in these various fields. It explores the potential of private international law to reassert a significant governance function in respect of new forms of authority beyond the state. To do so, it must shed a number of assumptions entrenched in the culture of the nation-state, but this will permit the discipline to expand its potential to confront major issues in global governance.

Domestic Courts and Global Governance the Politics of Private International Law

Author:
Publisher:
ISBN: OCLC:670293960
Release Date: 2007
Genre:

Since the mid-1980s, U.S. and foreign parties have filed more than 100,000 lawsuits in U.S. federal courts asking for adjudication of disputes arising from transnational activity. These lawsuits raise a fundamental question of global governance: Who governs? Should the United States assert its authority to adjudicate a transnational dispute, or should it defer to the adjudicative authority of a foreign state that also has connections with the underlying activity? Should the United States assert its authority to prescribe the rules governing that activity, or should it defer to foreign prescriptive authority? U.S. district courts routinely face these questions in transnational litigation, and by answering them they help allocate governance authority among states. To shed light on the role of domestic courts in global governance, this dissertation asks: How often and under what circumstances do U.S. district courts defer to foreign authority to govern transnational activity rather than asserting domestic authority? Drawing on private international law scholarship and theories of international relations, judicial behavior, and bounded rationality, I develop a series of hypotheses about the legal and political factors that influence judicial allocation of governance authority. I then statistically test these hypotheses using original data on U.S. district court decisionmaking in two transnational litigation settings: the allocation of adjudicative authority under the forum non conveniens doctrine, and the allocation of prescriptive authority under various choice-of-law methods. Contrary to the conventional wisdom that U.S. judges are reluctant to defer to foreign authority, I find that they defer at a rate of approximately 50% in both settings. And notwithstanding claims that legal doctrine does not significantly affect judicial decisionmaking, I present evidence suggesting that the forum non conveniens doctrine and choice-of-law doctrine both influence judicial allocat.

The Law of Global Governance

Author: Eyal Benvenisti
Publisher: BRILL
ISBN: 9789004279124
Release Date: 2014-07-02
Genre: Law

Also available as an e-book The book argues that the decision-making processes within international organizations and other global governance bodies ought to be subjected to procedural and substantive legal constraints that are associated domestically with the requirements of the rule of law. The book explains why law — international, regional, domestic, formal or soft — should restrain global actors in the same way that judicial oversight is applied to domestic administrative agencies. It outlines the emerging web of global norms designed to protect the rights and interests of all affected individuals, to enable public deliberation, and to promote the legitimacy of the global bodies. These norms are being shaped by a growing convergence of expectations of global institutions to ensure public participation and representation, impartiality and independence of decision-makers, and accountability of decisions. The book explores these mechanisms as well as the political and social forces that are shaping their development by analysing the emerging judicial practice concerning a variety of institutions, ranging from the UN Security Council and other formal organizations to informal and private standard-setting bodies.

Global Governance Human Rights and International Law

Author: Errol P. Mendes
Publisher: Routledge
ISBN: 9781134443543
Release Date: 2014-02-05
Genre: Law

This book offers a stimulating introduction to the links between areas of global governance, human rights global economy and international law. By drawing on a range of diverse subject areas, Errol P. Mendes argues that the foundations of global governance, human rights and international law are undermined by a conflict or ‘tragic flaw’, where insistence on absolute conceptions of state sovereignty are pitted against universally accepted principles of justice and human rights resulting in destructive self-interest for both the state and the global community. The book explores how human rights and international law are applied in some of the critical institutions of global governance and in the operations of the global private sector, and how States, institutions and global civil society struggle to fight this ‘tragic flaw’. The book is brought up to date by considering developments in the role of the IMF, the World Bank, bilateral investment treaties; the likely failure of the Doha round of WTO negotiations; the legacy of the 2008 financial crisis; and the role of the International Criminal Court and the evolving Responsibility to Protect doctrine in international peace and security crises in the Middle East, Central and West Africa among other regions of the world. With its intensely interdisciplinary approach, this book motivates new thinking in the realm of global governance and international law, and promotes the development of new strategies for negotiating between conflicting leadership and organisational values within global institutions. The book will be of great interest and use to students and researchers of public international law, international relations and political science, business and human rights, global governance and international trade and economic law.

Private International Law and Public Law

Author: Horatia Muir Watt
Publisher:
ISBN: 1782547797
Release Date: 2015-04-28
Genre:

The conspicuous absence of private international law from the current global governance debate may be traced in part to its traditional "public law taboo", fed by liberal understandings of statehood and its characteristic public/private divide, in the context of the modern schism between the public and private branches of international law. Alongside an original introduction, the materials assembled in this important collection are of immediate interest to both public and private international lawyers, and more broadly to all those interested in new forms of global governance and the theory of law beyond the state.

Private Standards and Global Governance

Author: Axel Marx
Publisher: Edward Elgar Publishing
ISBN: 9781849808750
Release Date: 2012-01-01
Genre: Law

'This book draws out the profound implications and transformational dynamics of multi-level global governance of natural resources, labour standards and particularly food safety. the hybrid private-public governance of these supply chains has in some contexts made large western retailer groups more dominant regulators than states. Yet the new regulatory governance is more pluralistic in its flux than a shift from state to retailer hegemony. Governance by contracts of global sway more than government by statutes of states drives regulatory innovation. Legal entrepreneurs and model mongers of many stripes inspire this innovation. Political theory is yet to come to grips with the significance of the shifts this thoughtful collection ably traces.' – John Braithwaite, Australian National University 'This edited volume represents a major contribution to scholarship on the role of private standards in global governance. It brings together a wealth of important new research written by a distinguished group of scholars. It is noteworthy not only for the breadth and depth of its case-studies, but by its extensive analysis of the legal dimensions of private standard setting and enforcement.' – David Vogel, University of California, Berkeley, US Private regulatory initiatives aim to govern supply chains across the globe according to a set of environmental, food safety and/or social standards. Until now, literature on the topic has been fragmented and divided by research fields. However, this unique and comprehensive book bridges these disciplinary and thematic research lines, bringing together an interdisciplinary group of leading scholars to identify key issues. the expert contributors assess the state-of-the-art with regard to private regulation of food, natural resources and labour conditions. They begin with an introduction to, and discussion of, several leading existing private standards, and go on to assess private food standards and their legitimacy and effectiveness in the context of the global trade regime. This truly multidisciplinary assessment of the scope and importance of private standards as a governance tool in a globalizing world will prove to be an enlightening read for a wide-ranging audience encompassing: academics, students, researchers, policymakers and analysts focusing on private forms of governance in several sectors including economics, law, politics, development, environment and agriculture.

International Arbitration and Global Governance

Author: Walter Mattli
Publisher: OUP Oxford
ISBN: 9780191026133
Release Date: 2014-07-17
Genre: Political Science

Most literature on international arbitration is practice-oriented, technical, and promotional. It is by arbitrators and largely for arbitrators and their clients. Outside analyses by non-participants are still very rare. This book boldly steps away from this tradition of scholarship to reflect analytically on international arbitration as a form of global governance. It thus contributes to a rapidly growing literature that describes the profound economic, legal, and political transformation in which key governance functions are increasingly exercised by a new constellation that include actors other than national public authorities. The book brings together leading scholars from law and the social sciences to assess and critically reflect on the significance and implications of international arbitration as a new locus of global private authority. The views predictably diverge. Some see the evolution of these private courts positively as a significant element of an emerging transnational private legal system that gradually evolves according to the needs of market actors without much state interference. Others fear that private courts allow transnational actors to circumvent state regulation and create an illegitimate judicial system that is driven by powerful transnational companies at the expense of collective public interests. Still others accept that these contrasting views serve as useful starting points of an analysis but are too simplistic to adequately understand the complex governance structures that international arbitration courts have been developing over the last two decades. In sum, this book offers a wide-ranging and up-to-date analytical overview of arguments in a vigorous nascent interdisciplinary debate about arbitration courts and their exercise of private governance power in the transnational realm. This debate is generating fascinating new insights into such central topics as legitimacy, constitutional order and justice beyond classical nation state institutions.

Critical Legal Perspectives on Global Governance

Author: Gráinne de Búrca
Publisher: A&C Black
ISBN: 9781782252887
Release Date: 2014-07-18
Genre: Law

This book of essays, written in honour of Professor David Trubek, explores many of the themes which he has himself written about, most notably the emergence of a global critical discourse on law and its application to global governance. As law becomes ever more implicated in global governance and as processes related to and driven by globalisation transform legal systems at all levels, it is important that critical traditions in law adapt to the changing legal order and problématique. The book brings together critical scholars from the EU, and North and South America to explore the forms of law that are emerging in the global governance context, the processes and legal roles that have developed, and the critical discourses that have been formed. By looking at critical appraisals of law at the global, regional and national level, the links among them, and the normative implications of critical discourses, the book aims to show the complexity of law in today's world and demonstrate the value of critical legal thought for our understanding of issues of contemporary governance and regulation. Scholars from many countries contribute critical studies of global and regional institutions, explore the governance of labour and development policy in depth, and discuss the changing role of lawyers in global regulatory space.

The Democratic Legitimacy of International Law

Author: Steven Wheatley
Publisher: Bloomsbury Publishing
ISBN: 9781847315861
Release Date: 2010-06-02
Genre: Law

The objective of this work is to restate the requirements of democratic legitimacy in terms of the deliberative ideal developed by JÃ1⁄4rgen Habermas, and apply the understanding to the systems of global governance. The idea of democracy requires that the people decide, through democratic procedures, all policy issues that are politically decidable. But the state is not a voluntary association of free and equal citizens; it is a construct of international law, and subject to international law norms. Political self-determination takes places within a framework established by domestic and international public law. A compensatory form of democratic legitimacy for inter-state norms can be established through deliberative forms of diplomacy and a requirement of consent to international law norms, but the decline of the Westphalian political settlement means that the two-track model of democratic self-determination is no longer sufficient to explain the legitimacy and authority of law. The emergence of non-state sites for the production of global norms that regulate social, economic and political life within the state requires an evaluation of the concept of (international) law and the (legitimate) authority of non-state actors. Given that states retain a monopoly on the coercive enforcement of law and the primary responsibility for the guarantee of the public and private autonomy of citizens, the legitimacy and authority of the laws that regulate the conditions of social life should be evaluated by each democratic state. The construction of a multiverse of democratic visions of global governance by democratic states will have the practical consequence of democratising the international law order, providing democratic legitimacy for international law.

Ruling the World

Author: Jeffrey L. Dunoff
Publisher: Cambridge University Press
ISBN: 9781139479677
Release Date: 2009-07-20
Genre: Law

Ruling the World?: Constitutionalism, International Law, and Global Governance provides an interdisciplinary analysis of the major developments and central questions in debates over international constitutionalism at the UN, EU, WTO, and other sites of global governance. The essays in this volume explore controversial empirical and structural questions, doctrinal and normative issues, and questions of institutional design and positive political theory. Ruling the World? grows out of a three-year research project that brought twelve leading scholars together to create a comprehensive and integrated framework for understanding global constitutionalization. Ruling the World? is the first volume to explore in a cross-cutting way constitutional discourse across international regimes, constitutional pluralism, and relations among transnational and domestic constitutions. The volume examines the core assumptions, basic analytic tools, and key challenges in contemporary debates over international constitutionalization.

The European Union in International Organisations and Global Governance

Author: Christine Kaddous
Publisher: Bloomsbury Publishing
ISBN: 9781782259435
Release Date: 2015-09-24
Genre: Law

The European Union is a key participant in international organisations with its involvement taking different forms, ranging from full membership to mere observer. Moreover, there is also not only one status of observer, but different ones depending on the constituent charters of the organisations. This book provides a comprehensive overview of the participation of the EU in five international organisations: the UN, the ILO, the WTO, the WHO and the WIPO. It identifies its role and influence in diverse areas of global governance, such as foreign policy, peace, human rights, social rights, trade, health and intellectual property. EU and international experts, diplomats and scholars have contributed to this book to give an overview of the different aspects linked to the participation of the EU in these organisations and to the coordination that takes place internally with its Member States. They also examine the EU's actual influence in the various areas and its contribution to global governance. The combination of these two dimensions allows the work to identify the strengths and weaknesses of the participation of the EU in these five international organisations. The book provides valuable insights for scholars, policymakers and is useful for representatives of other international organisations and civil society actors.

Public Private Partnerships and Responsibility under International Law

Author: Lisa Clarke
Publisher: Routledge
ISBN: 9781317975373
Release Date: 2014-03-21
Genre: Law

Partnerships between the public and private sectors are an increasingly accepted method to deal with pressing global issues, such as those relating to health. Partnerships, comprised of states and international organizations (public sector) and companies, non-governmental organizations, research institutes and philanthropic foundations (private sector), are forming to respond to pressing global health issues. These partnerships are managing activities that are normally regarded to be within the domain of states and international organizations, such as providing access to preventative and treatment measures for certain diseases, or improving health infrastructure within certain states to better manage the growing risk of disease. In the shadow of the success of these partnerships lies, however, the possibility of something going wrong and it is to this shadow that this book sheds light. This book explores the issue of responsibility under international law in the context of global health public-private partnerships. The legal status of partnerships under international law is explored in order to determine whether or not partnerships have legal personality under international law, resulting in them being subject to rules of responsibility under international law. The possibility of holding partnerships responsible in domestic legal systems and the immunity partnerships have from the jurisdiction of domestic courts in certain states is also considered. The obstacles to holding partnerships themselves responsible leads finally to an investigation into the possibility of holding states and/or international organizations, as partners and/or hosts of partnerships, responsible under international law in relation to the acts of partnerships. This book will be of interest to those researching and working in areas of global governance, especially hybrid public-private bodies; the responsibility under international law of states and international organizations; and also global health. It provides doctrinal clarification and practical guidance in a developing field of international law.