Private law, transnational law, global law
Wyndham Beawes, Lex Mercatoria Rediviva or the Merchant’s directory, Dublin, 1754
Credit: Domaine public
Wyndham Beawes, Lex Mercatoria Rediviva or the Merchant’s directory, Dublin, 1754.
Wyndham Beawes présente son ouvrage comme un guide complet pour tous les hommes d’affaires quels qu’ils soient (commerçants, prêteurs, propriétaires, expéditeurs, capitaines, assureurs, courtiers, commissionnaires, subrécargues, employés). Il reprend largement les travaux de Jacques Savary (Le parfait négociant) et de son fils Savary des Brulons. La lex mercatoria désigne un ensemble de règles et d’usages utilisés par les marchands pour gérer leurs échanges et transactions, illustrant ainsi la régulation d’activités transnationales par des règles informelles d’origine privée.
Summary
States have set up bilateral and multilateral agreements to resolve conflicts arising from the disparity between their private laws. But these efforts do not sum up the regulatory practices based on private rules. A growing number of private actors, who self-regulate or cooperate with public actors, are putting a great deal of effort into formulating norms and creating quasi-judicial regulatory mechanisms, so that legal experts are wondering whether a global law exists.
Each individual state has developed its own private law, which does not necessarily align with its counterparts in other states. As soon as goods, individuals and private law entities circulate among states, conflicts can arise between these different legal systems: as in cases of divorce between people of different nationalities, adoption of children in other countries, inheritance issues for individuals with transnational estates, double taxation risk, etc. With globalization and technological innovation, these situations have become more frequent, impacting ever more areas (surrogacy, protection of whistleblowers, circulation of digital artwork, etc.).
In order to resolve these conflicts and allow a base level of predictability and stability, states have established bilateral agreements and undertaken multilateral negotiations. At regional level, the OAS (Organization of American States) has worked on the codification of private international law, in line with the Bustamante Code of 1928. The European Union (EU) has sought to resolve similar divergences within its own membership by establishing priority of laws or of jurisdictions (Rome I and Rome II). At global level, the Hague Conference on Private International Law, initially a series of meetings established in 1893 and then (from 1955 onward) an intergovernmental organization, is tasked with harmonizing the rules of international private law. The growing number of member states, their diversity – geographically and in terms of their legal traditions (common law countries were admitted from 1955) – and the fact that regional organizations can also become members (the EU joined in 2007) evidence not only the institution’s openness but also the growing importance of efforts to coordinate and harmonize in a world where borders are constantly being crossed.
Members of the Hague Conference on Private International Law, 1955-2017
Comment: This map shows the members of the Hague Conference on Private Law, an organization whose aim is to harmonize private international law. Only 82 states are members, mainly from Europe and North and South America, but there are also some countries from Africa and the Middle East (South Africa, Egypt, Morocco, Saudi Arabia, Turkey, etc.), Asia (China, India, Japan, South Korea, Malaysia, etc.), and Oceania (Australia and New Zealand).
Growing private-sector role in global regulation initiatives
Yet regulatory practices based on private rules extend beyond these drives to unify private international law. On the one hand, private actors deliberately play off different national laws against each other, seeking to benefit from their divergences. This is the case when multinational corporations strategically determine the location of subsidiary operations by comparing the advantages they can derive from national legislation. On the other hand, formal or informal rules, public or hybrid (combining public and private actors) in origin, are playing a growing role in the regulation of transnational activities. The Lex mercatoria, for example, was the body of rules and practices developed among merchants and traders. The International Chamber of Commerce (CCI) defines international commercial terms (Incoterms), i.e. the obligations and responsibilities of the seller and the buyer in an international sale. The International Olympic Committee (IOC), an association under private law, and its related organizations (international sports federations and National Olympic Committees) issue supranational standards for the sports community. The Court of Arbitration for Sport (CAS), a quasi-judicial body used with increasing frequency, is its supervisory body. The increasingly numerous codes of conduct drawn up by a multitude of private actors (code of business practices from the International Council of Toy Industries, Transparency International's Integrity Pacts) or by private and public players jointly (Global Compact) are contributing to the emergence and dissemination of formal rules and therefore to regulatory initiatives and practices (Benoît Frydman and Gregory Lewkowicz).
Recourse to Court of Arbitration for Sport, 1986-2016
Comment: The Court of Arbitration for Sport saw a significant increase in its activity during the 2000s. This court, whose decisions set precedents in this area, is generally asked to resolve trade disputes (sponsors, repeat broadcasting rights, contracts, responsibility for accidents, etc.) and disciplinary issues (doping, rough play, injuries, etc.); football and the Olympic Games also occupy an important place.
Toward a global law?
A growing number of private actors who are self-regulating or cooperating with public actors are engaging in the formulation of standards and quasi-legal regulatory mechanisms. These practices evidence the increasing inter-penetration of internal and international law, of private and public law, and the areas of interplay where different systems meet. Consequently, some specialists are wondering whether a global law exists. This approach, which is contested by other legal specialists, encourages us to look beyond the canonical concepts of law as a discipline (such as the sources of law, or the legal order), to free ourselves from state-bound perspectives, and to focus on pragmatism. It provides tools to understand “unidentified legal objects” (Benoît Frydman), develop multi-level analysis, re-engage private and/or public actors in developing law – even if this is soft rather than hard law – and study the circulation of norms and their effects. It invites us to access objects of law in a way that reaches beyond the classical legal rules (regulations, standards, codes of conduct, etc.) and to conceptualize often compartmentalized practices in a more integrated way – as in the case of the Butare Four, relating to the Rwanda genocide, proceedings initiated under the Alien Tort Claims Act (the Total-Unocal case in Myanmar), the litigation between the Jewish community and Union of Swiss Banks (UBS), corporate social responsibility, private regulatory mechanisms around climate change, etc. All in all, this approach offers a way of studying the configuration of contemporary law in all its complexity.
- state > State
- The state is a political system that is centralized (unlike the feudal system), differentiated (from civil society, public/private space), institutionalized (institutions are depersonalized), territorialized (a territory whose borders mark the absolute limit of its jurisdiction), that claims sovereignty (holding ultimate power) and that bears responsibility for ensuring its population’s security. In public international law, the state is defined as a population living on a territory defined by borders subject to a political authority (the national territorial state).
- nationalities > Nationality
- In legal terms, nationality expresses an individual’s legal status of belonging to a state in accordance with the rules issued by that state. Nationality derives from parentage (jus sanguinis – right of blood), or from birthplace (jus soli – right of the soil), or is acquired by naturalization. The concept of nationality is linked with the development of the nation-state and the concept of citizenship, even though the status of a national and of a citizen do not necessarily overlap (non-democratic regimes, discrimination against some population categories based on ethnic, religious, linguistic or social criteria).
- globalization > Globalization
- The term globalization refers to a set of multidimensional processes (economic, cultural, political, financial, social, etc.) that are reconfiguring the global arena. These processes do not exclusively involve a generalized scale shift toward the global because they do not necessarily converge, do not impact all individuals, and do not impact everyone in the same way. Contemporary globalization means more than just an increase in trade and exchanges, an internationalization of economies and an upsurge in connectivity: it is radically transforming the spatial organization of economic, political, social and cultural relationships.
- circulation > Circulation
- People, merchandise, services, capital, information, ideas, values, and models are being transferred and exchanged in ever-increasing numbers. The expansion, diversification, and acceleration of movement typify the ongoing process of globalization. Circulation connects economic and social spaces through networks which, depending on their density, fluidity, output, and hierarchy, can differentiate them considerably. Of all types of circulation, information in the broadest sense is experiencing the most rapid growth, whereas the circulation of people is the one encountering most obstacles.
- multilateral > Multilateralism
- To see multilateralism as international cooperation involving at least three states reduces it to a mere technique. In fact, it also has a qualitative, normative aspect which has been evident since the time of the League of Nations. According to Franck Petiteville, this makes multilateralism a form of international collective action which aims to produce “norms and rules seeking to establish a cooperative international order governing international interdependencies.” The adjective “multilateral” first appeared in the late 1940s which is when awareness of the concept began to emerge.
- borders > Border
- The line that marks the limit of state sovereignty, as distinct from the hazy boundary zones or limits of empires. In no way natural, these long-term historic constructs, which can be more or less endogenous and more or less subject to dispute and violence, are being profoundly altered by contemporary globalization processes. Regional integration processes are transforming and diminishing them – even erasing them, and pushing them back; transnational actors are crossing them or bypassing them; at the same time, they are being closed to migration, while new borders (social, cultural) are being constructed.
- regulatory > Regulation
- The term regulation refers to all the processes and mechanisms that enable a system to function in a normal, regular fashion. At the international level, it refers to the set of processes, mechanisms and institutions that act to correct imbalances that might threaten the global order and to ensure that actors behave predictably, thereby ensuring stability. It is closely linked to the notions of governance and global public goods.
- multinational corporations > Multinational corporation
- Company that has undertaken foreign direct investment (FDI) giving it access to facilities that it owns fully or in part (subsidiaries). The first MNCs date from the late 19th century; corporations of this kind have become widespread in the early 21st century. The majority of FDI takes place between industrialized nations. Such companies are now transnational rather than multinational, the largest among them tending to evolve into global corporate networks.
- transnational > Transnational
- A relationship is transnational when it forms at the global level, whether intentionally or in practice, and exists outside the national context and at least partly beyond the control or influence of national governments (Bertrand Badie, 1999). Transnationalism is an interpretation of international relations that emphasizes the role of non-state actors and cross-border flows. It has developed since the 1970s around authors such as Joseph Nye, Robert Keohane and James Rosenau, in reaction to the dominance of realist and neorealist analyses.
- genocide > Genocide
- Crime codified by the international Genocide Convention of December 9, 1948. Its definition specifies acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group.”
- community > Communitarian
- Notions that appeared in the late 1970s on the political science, denoting the development of identity, a sense of belonging, and allegiance on ethnic, linguistic, religious, or sociological grounds, aside from or even against the state and the social contract it is supposed to guarantee. Contemporary globalization is profoundly altering the role of states and individuals, as well as the complex relationships between the universal and the particular, thus opening up spaces for multiple forms of communitarianism to emerge.
- corporate social responsibility > Corporate Social Responsibility
- A set of procedures and strategies concerning corporate governance and activities, which businesses adopt voluntarily (in other words they are not compelled to do so, but generally do under pressure from civil society actors) in order to meet social expectations in relation to environmental protection, human rights, the fight against corruption, etc. In practice, CSR is manifested through a series of commitments made by businesses (codes of ethics, codes of conduct, etc.) and by funding a few local development projects. However, it is criticized for often being used as a communications tool, known as “greenwashing,” and for turning self-regulation into a pretext for delaying the establishment of legal obligations.
- climate change > Climate changes
- The UN defines climate change as “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods” (United Nations Framework Convention on Climate Change [UNFCCC], 1992). The expression is used to describe global warming of the Earth’s surface, whose extent and rapidity are without precedent in the planet’s history, and results from the increase in anthropic greenhouse gas emissions (principally carbon dioxide and CO2, but also methane, nitrous oxide, perfluorocarbons, hydrofluorocarbons, and sulfur hexafluoride).