Wednesday, April 25, 2012

To read, on topics of legal pluralism

Three recent items of interest:

Joost Pauwelyn & Jan Wouters, Informal International Lawmaking: An Assessment and Template to Keep it Both Effective and Accountable:
This paper summarizes the findings of a two-year research project on "informal international lawmaking" (IN-LAW), that is, cross-border normative activity involving non-traditional actors, processes and outputs. We evaluate the likely reasons for the rise of IN-LAW and weigh possible options in response. We then assesses the legitimacy of both new forms of cooperation and traditional international law, also tackling the questions of whether new forms benefit powerful actors and how to keep activity accountable. Finally, focusing on the short to medium term, we question whether some of the new outputs of international cooperation could already be seen as part of traditional international law and how traditional and new forms are (or could be) interacting before international courts and tribunals. In this respect, we propose certain procedural meta-norms against which new cooperation forms ought to be checked, which we refer to as 'thick stakeholder consensus' imposing limits in respect of actors (authority), process, and output. Intriguingly, this benchmark may be normatively superior (rather than inferior) to the validation requirements of traditional international law, coined here as 'thin State consent'.

Paul Schiff BermanGlobal Legal Pluralism (Cambridge University Press 2012):
We live in a world of legal pluralism, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes imposed by state, substate, transnational, supranational, and nonstate communities. Navigating these spheres of complex overlapping legal authority is confusing, and we cannot expect territorial borders to solve all these problems because human activity and legal norms inevitably flow across such borders. At the same time, those hoping to create one universal set of legal rules are also likely to be disappointed by the sheer variety of human communities and interests. Instead, we need an alternative jurisprudence, one that seeks to create or preserve spaces for productive interaction among multiple, overlapping legal systems by developing procedural mechanisms, institutions, and practices that aim to manage, without eliminating, the legal pluralism we see around us. Such mechanisms, institutions, and practices can help mediate conflicts, and we may find that the added norms, viewpoints, and participants produce better decision making, better adherence to those decisions by participants and non-participants alike, and ultimately better real-world outcomes. Global Legal Pluralism provides a broad synthesis across a variety of legal doctrines and academic disciplines and offers a novel conceptualization of law and globalization.

Kenneth W. Abbott & Duncan Snidal, Taking Responsive Regulation Transnational:

Ayres and Braithwaite's Responsive Regulation (RR) has opened up important new ways of thinking about regulation in the 20 years since its publication. But RR was envisioned as a tool for domestic agencies. Thus, although RR focused on encouraging business self-regulation, it was designed for a setting in which agencies had clear jurisdiction, full regulatory capacity and extensive information, and could (contingently) deploy stringent sanctions against well-defined private targets. Since 1992, however, the locus of many regulatory problems has shifted to the transnational arena, characterized by multiple regulators, public and private, with limited capacities, authority and information and modest sanctioning ability. As production has globalized, moreover, targets have become diffuse and difficult to identify.
RR holds important lessons for transnational regulation, but it must be adapted to these challenging conditions. Some components of transnational RR are already emerging. These include many private and public-private schemes that regulate (and self-regulate) business through voluntary norms: "transnational regulatory standard-setting" (TRSS). Acting alone, however, TRSS schemes face serious limitations. International organizations (IGOs) are the best-positioned transnational responsive regulators, but lack agency-like authority.
To adapt RR to the transnational context, IGOs should focus on strengthening and working with the nascent TRSS system. Two techniques are particularly promising. In "regulatory collaboration," IGOs engage with business to promote self-regulation, much as in RR. IGOs have limited ability to escalate in response to defection, but can deploy reputational and market sanctions (negative and positive). In "orchestration," IGOs catalyze, support and steer intermediaries, including TRSS schemes and NGOs (PIGs), which use their own material and ideational capacities to regulate and promote self-regulation. Orchestration cumulates regulatory competencies and creates avenues of escalation. It also provides many benefits of RR "tripartism:" deterring capture, promoting contestability and experimentation, empowering societal groups and disciplining "zealous PIGs." Orchestration can also be applied internationally in regulating states, and domestically in regulating business.

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