Negotiating Globalization: Global Scripts and Intermediation in the Construction of Asian Insolvency Regimes

Abstract

This article draws from a larger research project on the globalization of bankruptcy law that includes (1) a time-series analysis of all bankruptcy reforms worldwide from 1973 to 1998; (2) participation observation, several hundred interviews and documentary analysis of international financial institutions (IMF, World Bank, Asian Development Bank, European Bank for Reconstruction and Development), international professional associations (International Bar Association, International Federation of Insolvency Practitioners), and world governance organizations (OECD, U.N. Commission on International Trade Law); and (3) case studies of Indonesia, Korea, and China. The globalization of law is a negotiated process. Our research on international organizations and case studies of China, Indonesia, and South Korea indicates that negotiation of the global/local relationship varies by the vulnerability of a country to global forces. Nation-states vary (1) in their balance of power vis-à-vis global actors; and (2) in their social and cultural distance from the global. Yet even where the global/local gap is wide and the asymmetry of power is pronounced, local responses to global pressures are negotiated as much as imposed. Negotiating globalization relies on direct and mediated interactions by several types of intermediaries who translate global scripts into four kinds of outcomes. The impact of intermediaries in this process varies by the phase of the reform in which they participate. Finally, globalizing law proceeds through recursive cycles of lawmaking and law implementation.