Legal Yardsticks: International Financial Institutions as Diagnosticians and Designers of the Laws of Nations

Abstract

In the past twenty years the legal departments of regional and global international financial institutions have become influential diagnosticians and designers of legal systems. This paper analyzes the intricacies and traces of power that surround the use of indicators by four IFI legal departments - the Asian Development Bank, European Bank for Reconstruction and Development, World Bank, International Monetary Fund - with particular reference to indicators of insolvency regimes. On the basis of its empirical research, the paper advances five theoretical propositions. First, the use and form of indicators by any one IFI reflects the structure and dynamics of the ecology of international organizations in which it is embedded. Second, the use of indicators is impelled by organizational imperatives that require IFIs to take on enormous tasks for which they are under-resourced. Third, an implicit and sometimes explicit epistemological tension among professions within IFIs impels their legal departments to diagnose national legal systems with technologies drawn more from the social sciences and finance than law. Fourth, because the competitiveness of IFIs as global normmakers depends upon their legitimacy, they are pressed to adopt representations of complex phenomena - legal systems - in forms that are acceptable to their core constituencies. Fifth, as a lever of legal change indicators are embedded in the recursivity of law which is characteristic of wide-ranging efforts to induce legal change domestically and globally.