Introduction: Institutionalisation beyond the Nation State: New Paradigms? Transatlantic Relations: Data, Privacy and Trade Law

Abstract

The chapter explores how we should understand the development of institutionalisation beyond the Nation State. It focusses largely but not exclusively upon a possibly ‘hard case’ of global governance, EU–US relations, long understood to be a non-institutionalised space, in light of recent legal and political developments in trade and data law. How should we reflect upon ‘progress’ as a narrative beyond the Nation State? What is the place of a bottom-up-led process? The lexicon and framework of institutionalisation is argued to be both an important and valuable one worthy of being developed out of the shadows of many disciplines. Institutionalisation may be the antithesis of the desired political outcome and simultaneously also the panacea for all harms. Contrariwise, it is a highly provocative lexicon in its own right for its capacity to provoke questions of sovereignty and sensitivity towards embedded institutionalised frameworks. Transatlantic relations provide a vivid multidisciplinary example of the relationship between institutionalisation and private power and quest for new forms of institutionalisation across a range of subjects. Exploring ‘de-institutionalisation’ may not capture adequately developments taking place between the EU and US in trade and data privacy. A broader context of extreme volatility in the global legal order is arguably also difficult to capture and pin down as to its specific temporal or conceptual elements. Strong internationalised institutionalisation appears to constitute the outcome of the ‘trade’ case study, whereas weak localised institutionalisation appears to constitute the outcome of the ‘data’ case study. Nonetheless, they both represent important evolving concepts of power, rights and authority beyond the State.