Private International Law And Global Governance

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.

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.

This book discusses the above-mentioned topics from a multidisciplinary perspective.

This book addresses conflicts involving different normative orders: what happens when international law prohibits behavior, but the same behavior is nonetheless morally justified or warranted? Can the actor concerned ignore international law under appeal to morality? Can soldiers escape legal liability by pointing to honor? Can accountants do so under reference to professional standards? How, in other words, does law relate to other normative orders? The assumption behind this book is that law no longer automatically claims supremacy, but that actors can pick and choose which code to follow. The novelty resides not so much in identifying conflicts, but in exploring if, when and how different orders can be used intentionally. In doing so, the book covers conflicts between legal orders and conflicts involving law and honor, self-regulation, lex mercatoria, local social practices, bureaucracy, religion, professional standards and morality.

For more than a century, law schools have trained students to 'think like a lawyer'. In these times of legal crisis, both in legal education and in global society, what does that mean for the rest of us? In this book, thirty leading international scholars - including Louis Assier-Andrieu, Marianne Constable, Yves Dezalay, Denise Ferreira da Silva, Bryant Garth, Peter Goodrich, Duncan Kennedy, Martti Koskenniemi, Shaun McVeigh, Samuel Moyn, Annelise Riles, Charles Sabel and William Simon - examine what is distinctive about legal thought. They probe the relation between law and time, law and culture, and legal thought and legal action; the nature of current legal thought; the geography of legal thought; and the conditions for recognition of a new 'contemporary' style of law. This work will help theorists, social scientists, historians and students understand the intellectual context of legal problems, legal doctrine, and jurisprudential trends in the current conjuncture.

The space occupied by international law in shaping political action is subject to continuing debate and controversy. This book aims to answer the question of how and why international law impacts the behaviour of actors on the international stage in the absence of central authority and faced with asymmetric power. At a time when the role of normative restraints in international relations, and international law in particular, has come under renewed questioning, it advances an analytical framework for understanding the effect of norms on behaviour that is not contingent on material restraints or a given political constellation, while being informed by the practical realities and practice of international organisation. In doing so, this book draws on an interdisciplinary range of sources, including international law, political theory, cognitive psychology and behavioural economics to explore a communicative action-based approach of how norms and ideas persuade actors to engage in a course of action consonant with international law to achieve a particular outcome. In probing the role of norms on questions such as the use of force and accountability, and issues of equity and justice, it examines the challenges international law faces and what the way forward may look like.

This work is based on long-term research into State practice combined with the development of a theoretical foundation of such practice, which explains the behaviour of states as subject to clear legal restraints. It argues that state practice is not compatible with traditional concepts of international law and that a fresh approach is required.

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.

International legal scholarship has traditionally celebrated the possibility of individuals being considered as subjects of international law. This book challenges that narrative, and reveals hidden patterns in the way we think about legal subjects in global governance. Building on the notion of a risk society, this book argues that international law creates fragmented subjectivities, whose conflicting identities help perpetuate a certain global loss of sense that is characteristic of our times. An innovative contribution that draws on a wealth of international legal materials (including human rights, EU law, international economic law, and international organizations), this book is useful to those with an interest in international legal theory, new approaches to international law, global constitutionalism, and global administrative law.

On a global scale, the central tool for responding to complex security challenges is public international law. This handbook provides a comprehensive and systematic overview of the relationship between international law and global security.