Global Administrative Law Research Articles

Integrating Environmental Impact Assessments into International Investment Agreements: Global Administrative Law and Transnational Cooperation

Integrating Environmental Impact Assessments into International Investment Agreements: Global Administrative Law and Transnational Cooperation

Blockchain and the Right to Good Administration: Adding Blocks to or Blocking of the Globalization of Good Administration?

ABSTRACT: In this article, the author addresses the complex and multifaceted relationship between the right to good administration enshrined in the Charter of Fundamental Rights of the European Union and the uses of blockchain technology by the public administration, which is in charge of making the right to good administration real. The opportunities and threats come hand in hand, and there is an urgent need to push forward a public debate on the uses and misuses of blockchain to guarantee public services, so much so that many aspects of blockchain are not compatible with citizens' expectations in relation to the public sector. Although the focus is on Europe, and the right to good administration is not technically recognized on the international level, the globalization produced by technological advancements on the one hand, and the emergence of global administrative law on the other hand, makes this debate relevant to the rest of the democratic states that want to foster human-centric technologies for the well-being of their citizens.

Acto administrativo y derecho global: aspectos problemáticos

The theory of global administrative law has not yet been examined in detail in one of its aspects, that of the doctrine of the administrative act. This shortcoming may be striking, bearing in mind that, in the sister discipline of transnational public law, there is a profuse and elaborate theory of the transnational administrative act. Throughout this work we aim to propose a model to explain this relationship. We take two points of view into consideration. In the first one, through a bottom-up analysis, we will criticize the possibility of extrapolating the theory of the administrativeact to the global legal sphere. In the second, we will examine the effects of global administrative law on the content of the national administrative act. From both perspectives we converge on a single conclusion: the contributions of the administrative act on the dogma of global administrative law are actually quite limited.

Taking global administrative law one step ahead: Online giants and the digital democratic sphere

Abstract Societal speech activities are increasingly conducted online, and therefore free speech concerns focus on the digital sphere. Major online service platforms operate speech-moderation practices that constrain digital speech. These platforms are run by a few multinational corporations—the so-called online giants. Online giants, in fact, control the backbone of democracies on a global scale. This article stresses a potential legal path to appropriately regulating digital speech, while preserving the free and thriving global digital culture. The argument introduced here is that the online giants should, to a certain extent, emulate global organizations, and since they control an essential public utility, they should operate under basic administrative legal norms that include accountability, transparency, giving reason, and objective review. To this end, the article inspects the global administrative law movement and proposes to extend its overarching conceptualization of global public procedural principles facilitating “good governance” to the online giants’ procedures, despite their private ownership.

La Agenda 2030, el Derecho Global y el Derecho Internacional

No son pocos los autores que hablan de crisis del Derecho Internacional. Algunos, incluso, proponen marcos normativos alternativos. Uno de los que mayor proyección ha tenido es el propuesto por Kinsgbury, Krisch y Stewart, relativo al Derecho Administrativo Global o Derecho Global. Por otro lado, la Agenda 2030 constituye un hito que marca las relaciones internacionales en nuestros días, de ahí que en este trabajo se aborde de qué manera la Agenda 2030 podría enmarcarse en la propuesta de Derecho Global. Asimismo, se investiga si estamos ante un nuevo marco jurídico o si, por el contrario, el Derecho Internacional tiene una gran capacidad de adaptación, por lo que estaríamos ante un Derecho Internacional flexible, en el que se enmarcaría la Agenda 2030.

The Expanding Role of Classification Societies in Conserving the Marine Environment: The Case of the 2004 BWM Convention

Private actors and their roles in conserving the marine environment have attracted increasing attention. Although classification societies were originally designed as industrial organizations developing internal standards on hull and machinery, their contributions to the marine environmental protection should not go ignored. As exemplified by the Ballast Water Management (BWM) Convention, an international shipping instrument on ballast discharge for which the implementation process was subject to technological uncertainties, their contributions can be described in three ways: verification on behalf of states as “recognized organizations”; participation in International Maritime Organization (IMO) sessions; and establishment of their own standards. It is argued that these multiple functions reveal the competence of classification societies to tackle vessel-source pollution, and further, that their technical know-how and firsthand experience accumulated from shipping practice demonstrate their potential to address other complicated marine environmental issues where experience and compliance technologies are essential. However, the expanding focus of classification societies to marine environmental issues should proceed with caution. A much under-discussed point is the impact of classification rules and standards developed by the International Association of Classification Societies (IACS) on international shipping conventions as agreed by states. Though it cannot be said that classification societies are making their own vessel-source discharge standards independent from the IMO lawmaking process, the Unified Requirements on BWM system installation illustrate that obligations under international instruments could be de facto complemented by industrial standards, despite the fact that no provisions incorporating the latter are explicitly spelled out in the former. Given the noticeable lack of state consent throughout the private standard-setting process and the near-universal applicability of IACS standards, legitimacy concerns arise as to whether it is justified for classification societies to wield such an impact on the development of vessel-source pollution requirements, affecting both states and other maritime stakeholders. In this respect, a global administrative law perspective is taken to examine in what ways their legitimacy could be challenged.

The Relation between Constitution and Global Administrative Law – Some Reflections

The Relation between Constitution and Global Administrative Law – Some Reflections

The concept of legal space: A topological approach to addressing multiple legalities

AbstractThe notion of legal space is increasingly being used to address the challenges of multiple and overlapping spheres of legality that the notion of legal order cannot capture. This article shows how legal space can serve as an alternative (or at least complementary) concept to legal order in view of the limitations of the latter. It sketches out a notion of legal space that is inspired by topology, an approach that analyses the qualitative nature of spaces. It is concerned with understanding the ways in which legalities interact, rather than with ‘measuring’ their spatial dimensions. A topology-inspired approach to legal space can contribute to conceptualizing, in a novel manner, the inner structure of legal spaces, the boundaries of these spaces and their interrelations with other spaces. It offers an analytical toolkit for better understanding multiple legalities, providing categories to characterize sets of legal elements as well as phenomena such as overlaps and hybridity. It is conceptually less constrained than the concept of legal order, and thus allows us to address various bodies of law ranging from classical domestic law, EU law and international law to global administrative law, corporate social responsibility law, platform law and lex sportiva.

Possible Legal Cooperation for a BRICS Perspective on International and Transnational Economic Law

This research paper seeks to identify and analyze the regulations that rule the economic life of the BRICS countries in the fields of foreign investment’s law, competition law and global administrative law, and further to identify points of convergence and divergence among them in order to indicate the possibilities of legal cooperation to facilitate economic exchanges and investments flow among them. We believe that the possible bottlenecks in trade and investment can be overcome mostly by exchange of experiences, to mitigate the lack of knowledge on national laws and regulations, and by the creation of cooperative mechanisms that facilitate the economic flow among them.

Taking Global Administrative Law One Step Ahead: Online Giants and the Digital Democratic Sphere

Today, societal speech activities are increasingly conducted online. Therefore, free speech concerns focus on the digital sphere. Major online service platforms operate speech moderation practices constraining digital speech. These platforms are run by a few multinational corporations — the so-called online giants. Online giants, in fact, control the backbone of democracies, on a global scale. Against this backdrop, this article stresses a potential legal path for appropriately regulating digital speech, while preserving the free and thriving global digital culture. The argument introduced is that the online giants should to a certain extent emulate global organizations, and since they control an essential public utility, they should operate under basic administrative law norms that include accountability, transparency, giving reason, and objective review. For this end, the article inspects the Global Administrative Law movement and proposes to extend its overarching conceptualization of global public procedural principles facilitating “good governance” to the online giants’ procedures, despite their private ownership.

Recalibrating the WTO Dispute Settlement System: Towards New Standards of Appellate Review

ABSTRACT This paper analyses the legal nature of the dispute settlement system in the World Trade Organization. It places the Panel stage at the heart of it and stresses the crucial role of the World Trade Organization Secretariat. It submits proposals for structural reform. It qualifies Panel reports as a product of a legal agency process in global administrative law. It consequently recalibrates the role of the Appellate Body with a view to bring about checks and balances. This paper explores the neglected role of standards of review of the Appellate Body vis-à-vis Panels. While securing a continued leading role of the Appellate Body on constitutional issues and fundamental principles of the system, it suggests a more deferential standard of reasonableness in reviewing Panel findings on World Trade Organization rules.

The Impact of COVID-19 on Global Administrative Law

The Impact of COVID-19 on Global Administrative Law

국제신용평가사의 초국가적 영향력 행사에 대한 고찰 - 연성규범 및 세계행정법(GAL)의 논의를 중심으로 -

오늘날 국가를 중심으로 하는 전통적 법주체 이외에 다른 기구 및 조직들이 다방면에 걸친 활약을 하고 있으며 민간기구도 전통적인 국가의 역할을 상당 부분 대체하고 있다. 특히 일부 다국적기업이나 NGO 등 사적주체는 국제사회에서 작은 국가 이상의 실질적 영향력을 행사하고 있다. 이러한 맥락에서 민간기업으로서 국제사회에서 엄청난 영향력을 행사하고 있는 국제대형신용평가사를 살펴볼 필요가 있다.<BR> 세계 3대 국제 신용평가회사인 스탠더드앤푸어스(S&P), 무디스(Moody’s), 피치(Fitch)는 표면상으로는 미국의 민간회사이지만 기업이나 금융상품의 신용평가를 넘어 국가에 대한 신용등급까지 매기면서 한 나라의 흥망이 이들의 신용평가결과에 의해 흔들릴 정도의 위력을 행사하고 있는 것이다.<BR> 글로벌 금융위기의 주요원인으로 신용평가사가 지목되자 국제금융시장에서 신용평가에 대한 의존도를 줄이려는 노력이 두드러졌다. 그러나 유럽과 미국 등에서는 국제신용평가사에 대한 규제입법 및 제재사례에도 불구하고 크게 실효성을 거두지 못하였다.<BR> 이러한 문제인식 하에 본 연구에서는 비국가행위자로서 ‘신용평가주권’에 위력을 행사하고 있는 세계 3대 국제신용평가사에 대한 통제방안으로서 연성규범의 활용 및 세계행정법(Global Administrative Law)의 논의를 참고하고자 한다. 특히 사적주체의 전면적인 등장은 국제법 그리고 세계행정법 영역에서 구체적으로 상정하지 않았던 것으로 심도있는 논의가 요청되는 부분이다.

From meditation to action – a research agenda for studying informal global rule-making: remarks on ‘Cosmopolitanism, publicity, and the emergence of a “global administrative law”’

AbstractFriedrich Kratochwil engages critically with the emergence of a global administrative law and its consequences for the democratic legitimacy of global governance. While he makes important contributions to our understanding of global governance, he does not sufficiently discuss the differences in the institutional design of new forms of global law-making and their consequences for the effectiveness and legitimacy of global governance. I elaborate on these limitations and outline a comparative research agenda on the emergence, design, and effectiveness of the diverse arrangements that constitute the complex institutional architecture of contemporary global governance.

Global Innovation Law

This article is about opening up a debate on global innovation law. The article argues that a new hybrid area of trans-global law has emerged in the past decade due to the rise of various disruptive and technological challenges to law beyond the state. As such, the article argues that global innovation law is a new field that encapsulates the dynamics of law-making and regulatory governance in how law operates in a trans-global environment. With the rapid changes in law and regulation to meet the demands of the global economy – the interaction of law and these changes at the domestic and international level can no longer be subjected to the interaction of domestic and international law. Although, there have been efforts to develop a steady stream of scholarship to address similar developments, whether as “global administrative law”, “legal pluralism”, “transnational law”, amongst others – they all do not capture the dynamics of how law meets innovation as a result of disruptive technology. Hence, global innovation law is meant to address some of these challenges by looking at the collision of globalization, innovation and disruptive technologies such as artificial intelligence, data governance and in the financial technology sector. The premise of this article is therefore to map the foundations of global innovation law.

Los espacios administrativos globales, legitimidad y eficacia de sus regulaciones

La interdependencia global nos obligó a desmitificar el estatismo, a rechazar la idea absoluta de que los estados son el principio y fin de todo. Los actos administrativos transnacionales dictados por la administración pública global, se cuestionan por carecer de sustratos filosóficos, de un sistema de fuentes y principios. Aun cuando su ejecución dentro de los estados adopte un camuflaje de legitimidad, persisten las dudas en cuanto a su validez, por no observar los causes legislativos internos, por no tener un control ex ante ni ex post de constitucionalidad, ni tribunales de revisión en el nivel transnacional, un dilema aún sin resolver y una alarma para el rule of law. A todo esto, se agregan las fisuras del modelo de gobernanza global existente, que limita el ciclo evolutivo del derecho administrativo global, arriesgando la vigencia de los sistemas democráticos y de la accountability como una de sus mejores expresiones.

Judicial Review, Foreign Relations and Global Administrative Law. The Administrative Function of Courts in Foreign Relations

The chapter investigates the role of domestic courts in the management of foreign relations (FRs). Combining insights from the ongoing trend towards the ‘administrativisation’ of the jurisdictional function and the theoretical approach of Global Administrative Law (GAL), it explores whether and to what extent domestic judicial bodies “administer” FRs, establish coordination relationships and potentially develop a ‘common language’, even in such highly politicized field. In particular, the GAL approach brings out the role of global regulators of courts in a domain where their influence is often underestimated. With a varying degree of awareness, courts contribute to determine States’ FRs, and this role in contemporary constitutional systems has become structural. Indeed, a GAL approach, in highlighting such role, may strengthen the self-awareness and responsiveness of courts. However, a survey on the judicial practice in this field suggests that the intervention of judicial bodies may lead to greater disorder, conflict and de-stabilization, thus – and paradoxically – frustrating the purposes of ordering the structures of global governance underlying the GAL project. Section II briefly recalls the main features of FRL (II.A) and GAL (II.B), mapping the analytical bases of the chapter, their conceptual assumptions, and the main challenges they face. Based on an a systematic survey, section III outlines a tentative taxonomy of the forms that the judicial practice takes in developing an embryonic ‘global administrative law of foreign relations’. In particular, sub section III.A focuses on the ‘review norms’, while sub-section III.B focuses on the ‘interaction norms’. Section IV concludes, summarizes the core claims and highlights, from a more normative perspective, the potential risks of the administrativisation of FRs, which may also cast doubts on the general value of GAL as a normative endeavor.

A Regulação Global para Combate à COVID-19: Riscos de captura, ruptura e adaptação

The present article examines the contemporary challenges facing global regulation based on a study of the fight against COVID-19 and the risks of capturing (hijacking), rupturing, and adapting normative standards to institutional contexts and local circumstances. The point of departure for the theoretical discussion is a review, update, and problematization of the analysis made by Mattli and Woods with an emphasis on the risk of regulatory capture, requiring a transcendence of the classic debate between theories of regulation representing public or private interests based on an analysis of the regulatory space. Political transformations to global regulation include the development of the global regulatory network, the new instruments of participation and mechanisms of control, as well as the emergence of global administrative law. The case study on the global regulation of the fight against COVID-19 suggests that the effective application of the humanitarian paradigm and the upholding of the right to health and life must also consider the plasticity, friction, and shifting of local measures to contain the epidemic.

Mecanismo de solución de controversias del MERCOSUR y derecho administrativo global

Initially, it will be analyzed what would be global governance and Global Administrative Law (DAG), as a regulator of its exercise, mainly through its principles that seek legitimacy and accountability. Among them, proportionality, protection of legitimate expectations, participation, the duty to motivate decisions and the right of appeal will be highlighted. However, the focus will be the regulation of trade exercised by MERCOSUR, in an attempt to verify to what extent the precepts of the DAG are respected. Focusing on the MERCOSUR dispute settlement mechanism, the research will analyze the evolution of this system, up to the current stage with a critical analysis from the DAG perspective, to know what agrees with it and what must evolve to improve the level of business governance that, as the case study analysis will show, is already reaching global levels. Finally, drawing the current panorama of the MERCOSUR dispute settlement system, the course towards evolution will be delineated to guarantee greater stability, efficiency and consolidation of the integration process, based on DAG and its contribution to the legitimacy of global governance.

The Concept and Instances of General Principles of Administrative Law: Towards a Global Administrative Law

Actualmente, presenciamos el aumento del principio general de los discursos del derecho administrativo en todos los sistemas legales para potenciar los valores de buena administración en los órdenes legales administrativos. En numerosos litigios administrativos, los jueces han invocado algunos casos de principios legales que se imponen al contexto de las acciones del gobierno como criterios modernos y requisitos legales; pero, a pesar del papel normativo determinista del principio general del derecho administrativo, su concepto aún no está definido con precisión. Existen múltiples trabajos meticulosos que identifican el concepto de “principio legal” y sus ejemplos conocidos en los sistemas legales; sin embargo, esencialmente no queda claro si, existencialmente, tenemos principios generales de derecho administrativo en nuestros sistemas legales administrativos. Por lo tanto, este documento se es fuerza por proporcionar una respuesta convincente a la pregunta al presentar un discurso estricto sobre la definición del principio general del derecho administrativo y sus posibles instancias en los sistemas legales administrativos, principalmente entre las decisiones de los jueces de la Unión Europea y el Reino Unido —de los cuales representan normas administrativas fundamentales—, al descubrir un concepto general preciso de cada uno de ellos en los sistemas legales, se puede hacer un retrato genérico de la cara del derecho administrativo global.