Global Administrative Law Research Articles

Reforming Rulemaking and Enforcement Mechanisms of International Financial Law

International financial law (IFL) is evolving from a situation of acquiesced anarchy (characterised by coordination dilemmas, compliance gaps and unwarranted independence of regulators) towards a more ordinate and coordinated framework. The conceptual crisis of the New International Financial Architecture (NIFA) and the failure of the system of global division of regulatory labour between international financial institutions (IFIs), international setting bodies and national regulatory authorities have left a vacuum of power and mandate. Hints of a shift in the global governance of financial markets are acknowledged in the reform of the Financial Sector Assessment Program (FSAP) and in the potential role of the Reports on Observance of Standards and Codes (ROSCs), jointly administered by the IFIs. The central role of the Financial Stability Board (FSB) as global coordinator has significantly reinforced the functions of monitoring and rationalizing implementation (i.e., with a creative result) of international regulatory standards, in combination with surveillance mechanisms by the International Monetary Fund (IMF). In addition, FSB’s constituency under the G-20 is likely to render its political mandate as more acceptable by Members and stakeholders. However, although the framework created in the aftermath of the financial crisis may allow for coordinated solutions, effective action by governments is - as a matter of fact - missing. This notwithstanding, IFL has largely achieved authoritative characters, in so far as it can determine outcomes and compel obedience. Proceeding from Ernst-Ulrich Petersmann’s posture that international economic law has failed to effectively protect public values and to ensure participatory democracy and global justice, while international law has historically protected individuals from governmental intervention and power abuse, the legitimacy of IFL is critically investigated. To this extent, the Author addresses the superseded theory of Transnational Regulatory Networks (TRNs), which has been partially resumed by the Informal International Lawmaking (IN-LAW) project, the compensatory approach advocated by the Global Administrative Law (GAL) scholarship, and a democratic-striving approach. The Author eventually resorts to public enforcement remedies by virtue of a renovated role of the intergovernmental (‘ministerial’) cooperation and public international law solutions.

International Standards as Global Public Goods in the World Trading System

International standards have assumed special legal significance in the World Trade Organization (WTO) Agreement on Technical Barriers to Trade (‘TBT Agreement’). This article conceptualizes international standards as global public goods and argues for applying global administrative law principles to vet international standards before they are afforded quasi-legislative status in the WTO law. We traced how the WTO Appellate Body has changed its original hands-off approach in EC – Sardines in 2002 to a more intrusive approach in US – Tuna II in 2012.We submit that the WTO Appellate Body’s new approach to international standards marks a distinctive pathway for the development of global administrative law in producing global public goods. The compliance with global administrative law principles set out in the TBT Committee Decision in turn provides international standardizing bodies with additional legitimacy and accountability. However, contrary to popular opinion, we submit that adoption by consensus is not a necessary condition for a standard to be recognized as an international standard in the world trading system.

Judicial Review on Administrative Action: Reflection on the Bank Century Bailout Policy

Accountability is the key to good governance. In the global administrative law, every policy made should be accountable. The given law should be accessible for public. When global financial crisis happened, many countries didn't have the necessary rules to solve the problem arised. In Indonesia, the decision from government to bailout century bank is controversial as of right now. The need of comprehensive law in related to economic, political and social factor should be considered. The law of Administrative Governance of Indonesia (UU No 30/2014) had provided the code of conduct for government action. The placement of discretion in one whole chapter can be seen in two ways side-the restriction of government action and protection for public rights. In practice, the implementation of such rule is not accessible as the formulation intended. Harmonization with the law of Administrative Courts in Indonesia (UU No 5/1986 jo UU No 9/2004 jo UU 51/2009) is still needed.

Collective Security Through Law (Mach II): Norm-Cascades and the United Nations

If the pursuit of collective security through law that held sway in 1945 rested on the judicial function of pacific dispute settlement, the place of law in collective security in 2015 rests on the (quasi) legislative function of standard-setting. This paper examines changes in the way law is instrumentalized by UN organs and agencies in order to address non-traditional threats to international peace and security that do not emanate from state-on-state aggression. Positive legal instruments like UN Security Council (UNSC) resolutions and multilateral conventions such as the UN Convention on Transnational Organized Crime are only the tip of the iceberg and that beneath the binding legal provisions contained in them lie cascading strata of increasingly detailed and technical norms. It suggests that these norms can be understood as what Michel Foucault called ‘infra-law’ – a form of law that operates on the underside of formal, positive law. Inspired by Fleur Johns’ work on non-legality, it calls for international lawyers to pay attention to technical implementation practices as a way of mitigating some of the negative tendencies of disciplinary power. Contrary to other ways of bringing such practices and mechanisms into the sightlines of international lawyers – such as Global Administrative Law and certain forms of soft law – the paper argues that there is no need to rebrand such practices as positive international law or as lex ferenda. Instead, it is suggested that international lawyers can deal with these phenomena as proximate to substantive international law. The paper distinguishes the province of international law from that of international lawyers.

Governance Indicators in the Law of Development Finance: A Legal Analysis of the World Bank’s ‘Country Policy and Institutional Assessment’

The article presents a legal critique of and a legal framework for the ‘Country Policy and Institutional Assessment’ (CPIA), the indicator system used by the World Bank to evaluate the governance performance of its borrowers and to allocate aid to its poorest members. The CPIA is becoming increasingly rules-based and raises important questions for legal research: First, what legal role does the CPIA play in the allocation of public resources by the World Bank, and how can the CPIA’s financial, reputational, and cognitive effects be conceptualized from a legal point of view? Secondly, what is the existing legal framework for influential governance rating exercises like the CPIA, and should this framework be developed further along the lines of Global Administrative Law or ‘public’ law thinking? And finally, what is the appropriate role of ‘technocratic’ instruments such as indicators in global (re)distribution of financial resources? The main argument is that the CPIA is a promising tool to make development more effective, but that it also represents a powerful exercise of international public authority which requires an appropriate public law framework. This framework already exists in part within the administrative law of development cooperation, which enables us to transform certain concerns about the CPIA’s effectiveness and legitimacy into legal arguments. However, this framework remains deficient and must be further developed, for which the article makes some concrete suggestions. The article proceeds in three main steps: It first develops an analytical and regulatory framework for indicators used in development cooperation. It then applies this framework to the CPIA, analysing its genealogy, contents, and effects, as well as existing mechanisms of participation, reason-giving, transparency, and review. The third section evaluates the CPIA’s existing legal regime against the principles of development cooperation law, namely development-orientation and efficacy as well as collective and individual autonomy. The conclusion reflects on how this framework potentially captures the tensions between distributive politics and expert-driven, technocratic instruments like indicators.

Lessons From a Traffic Light

Traffic lights are examined as one of the most common examples of “global administrative law” governed by an international convention (the 1968 Vienna convention on traffic signs). They also bear implications for legal philosophy especially as regards the relations of individuals with norms and normativity and the creation of social norms. Furthermore the traffic light metaphor is widely used in common language and in other fields of law. Finally traffic lights are seen from a comparative law perspective, especially as a test for the effectiveness of uniform (and global) laws, taking into account essential aspects of the law such as sanctions and enforcement. Traffic lights could be used as an elementary model to verify uniformity and compliance in much more complex pieces of the law.

A Internet: Um Objecto Para O Direito Administrativo Global? (Internet: A subject matter for Global Administrative Law?)

Portuguese Abstract: This small text poses the question whether the analytical framework of Global Administrative Law (GAL) is fit to describe and understand Internet Regulation. In order to answer, it starts by summarizing the idea of GAL and its purpose. The working and regulation of the Internet are briefly described before concluding that although GAL has some utility, Internet law is still mainly national law. Este artigo analisa brevemente a utilidade dos quadros conceptuais do Direito Administrativo Global (DAG) para descrever a regulacao da Internet. Para o efeito, comeca por fazer um pequeno enquadramento do DAG e do respectivo proposito. De seguida, descreve o funcionamento e regulacao da Internet, antes de concluir que apesar de o DAG ter alguma utilidade, o Direito da Internet e ainda uma realidade regulada fundamentalmente a nivel nacional.English Abstract: This small text poses the question whether the analytical framework of Global Administrative Law (GAL) is fit to describe and understand Internet Regulation. In order to answer, it starts by summarizing the idea of GAL and its purpose. The working and regulation of the Internet are briefly described before concluding that although GAL has some utility, Internet law is still mainly national law.

The Role of Law in Assessing the Value of Transparency and the Disconnect with the Lived Realities Under Investor-State Dispute Settlement

Transparency is often uncritically considered a pre-requisite to accountability within the ISDS system, without much discussion directed to how transparency is instrumental to achieving such accountability. Yet, transparency is generally thought to be the golden bullet for effecting social transformation as well as considerations of the public interest in investor state dispute settlement (ISDS). This article aims at fostering deeper and more critical debate on the notion of transparency; in order to better understand both the ways in which it could be conceived for the purposes of transformation of the ISDS system and the extent to which international investment law and global administrative law (GAL), is a useful concept for this purpose. This paper considers the ways in which the legislative and policy framework governing transparency creates the conditions whereby state and investors utilize the language and practice of transparency as a self-legitimising tool through its claim to accountability. This is further tested against choices made by state institutions and the ISDS system itself for the alluring concept of voluntary disclosures with no enforcement mechanisms - an intellectual contradiction. In response to this quandary, this paper aims at addressing some of the theoretical gaps identified above, particularly by examining the conceptual understandings of transparency, the current state of transparency in the ISDS system and the role of GAL in revamping the system.

Human rights and international investment arbitration

Recent investment arbitration disputes have raised several human rights related issues, which do not form part of the traditional scope of investment treaties. Obligations in investment treaties can impair human rights if interpreted too broadly during arbitration. Therefore, it is necessary to determine whether investor-state dispute settlement (ISDS) tribunals are adequately equipped to resolve treaty disputes where the human rights obligations of states clash with a state’s investment treaty obligations. In some states, such as South Africa, there are competing interests between the state’s constitutional rights obligations and treaty-imposed investment obligations. In seeking to balance these competing interests and to ensure that the constitutional rights as well as responsibilities of the state are not undermined, this article proposes an interpretive approach in ISDS tribunals that applies a hybrid approach that considers both domestic and international law. The paper argues that the use of global administrative law principles, particularly the principle of deference, can achieve the consideration of both domestic and international law. In building this argument, the author explores the emerging trends in ISDS, such as new rules on transparency and public participation and the scope of their application, which has led to the claims that ISDS arbitration is undergoing a legitimacy crisis. This paper proposes an alternative approach where ISDS tribunals defer to domestic law when determining the content and scope of treaty obligations.

Global Public Goods and Democracy in International Legal Scholarship

Over the last decade, global public goods (GPGs) have been at the centre of the policy discourse of prominent international organisations, States, and non-government organisations (NGOs) alike. The concept emerged in 1999, in a seminal book sponsored by the United Nations Development Programme (UNDP), and finds its origins in economic theory. The economic literature defines public goods as non-rival, since anyone can benefit from them without diminishing the quantity available to other consumers, and non-excludable, as no one can realistically be excluded from their consumption. Nowadays, an increasing number of public goods transcend national boundaries. For instance: climate change mitigation, the eradication of infectious diseases, the fight against corruption, or the protection of the ozone layer are all seen as GPGs. But despite its topicality, the concept has attracted little attention from legal scholars around the globe. Not only this, but among the few authors that actually engage with the topic, the majority focus on issues related to the provision of GPGs, while the question of what goods should be publicly provided in the first place, as well as the decision-making process underlying such a determination, has been left largely unexplored. It is with respect to this specific issue that we wish to contribute to the debate. In our view, the definition of GPGs is a matter of policy choice, as it goes beyond economic, value-free considerations. Therefore, it cannot lie beyond the control of democratic structures. GPGs cannot be defined in a democratic and legal vacuum—a legitimate and inclusive decision-making process is required. In this article, we endeavour to explain how international legal scholarship, in particular the global administrative law and global constitutionalism projects, can contribute to integrating democratic standards in the process of defining GPGs.

El tratamiento de los servicios públicos en los arbitrajes de inversión: una propuesta desde la perspectiva del derecho administrativo global

The public service has been, traditionally, a domestic concept of the Administrative Law. However, as a consequence of globalization, the public service regulation by the Administration is also subject to the Global Administrative Law, specifically in the context of the international investment arbitration.

Wybrane uwagi na temat charakteru i statusu lex sportiva w przestrzeni prawnomiędzynarodowej

Artykuł podejmuje tematykę charakteru prawnego i miejsca prawa sportowego w strukturze prawa międzynarodowego. Obejmuje rozważania nad typami źródeł prawa, zakresem przedmiotowym i podmiotowym (instytucjonalnym) prawa sportowego na poziomie międzynarodowym, porusza kwestię konieczności usystematyzowania terminologii w zakresie takich pojęć, jak ‘międzynarodowy porządek’ i ‘system sportowy’. Autor podejmuje próbę przybliżenia definicji terminu lex sportiva, a także prezentuje wybrane uwagi i obserwacje na temat jego klasyfikacji jako, odpowiednio, prawa międzynarodowego, transnarodowego, globalnego i ponadnarodowego. W końcowej części argumentuje za opisem lex sportiva w kategoriach globalnego prawa administracyjnego i wskazuje na jego innowacyjne cechy, mogące stanowić potencjalnie atrakcyjną modelową propozycję lex ferenda nowego prawa globalnego.

Functionalism! Functionalism! Do I Look Like Functionalism?

In his EJIL Foreword, Jan Klabbers argues that the contemporary application of functionalism, understood as organizations being assigned functions, in order both to realize the common good and to deepen inter-state cooperation, is something of a theoretical straitjacket. However, can functionalism really be described as a ‘one-size-fits-all’ concept? It is the contention of this Comment that there are, in fact, different manifestations of the concept, including neo-functionalism and formal or informal functionalism. New realities in this field also reflect an evolved conception of functionalism, such as the increasing diversity of actors affected by, and influencing, international organizations, as well as the fact that institutions have become authorities in their own right. As a consequence, we may also observe the emergence of principles, often referred to as global administrative law principles, aimed at dealing with these new realities. The article recognizes that a functional orientation in designing the mandates of international organizations has contributed to overlaps and inefficiency. However, it argues that efforts have been made in pursuance of greater efficiency.

From Public International to International Public Law: Translating World Public Opinion into International Public Authority

Calls emerging from world public opinion for legitimate and effective institutions require a paradigm shift in public law. There is a part of public law that should better be understood as international public law, because it enables and disciplines the exercise of public authority, i.e. the pursuit of public interests by institutions. The paper unfolds our understanding of public law by way of a thorough discussion of other approaches to governance phenomena in legal scholarship, including private law approaches, critical approaches, International Institutional Law, Global Administrative Law, and Constitutionalism. It then carves out the notion of public authority. This notion includes various types of soft and informal governance instruments with innovative compliance mechanisms, as well as the activities of informal and hybrid institutions or network-like structures.

The Quest for International Rule of Law and the Rise of Global Regulatory Regimes Some Theoretical Preliminaries

This paper addresses the rise of global regulatory regimes within a broader theoretical framework of the international rule of law. Section 1 focuses on the question of who should be ultimate beneficiaries of the international rule of law, and it challenges Waldron’s claim that these should be individuals, rather than states. This section shows that, depending on the nature of a particular regime, states could also benefit from the global adherence to the rule of law. Section 2 explores what is required for a global regulatory regime to conform to the international rule of law value. Since central to this value has to be the very same idea that exists on the domestic level, that of “bounded government” which is restrained from acting outside its powers, a global regulatory regime has to meet a set of procedural and substantive requirements stemming from domestic administrative law, but adapted to peculiarities of the international level. Finally, Section 3 tries to show that the capacity of these regimes to excel the rule of law principles immanent to administrative matters is intricately connected to their putative “legality.” It transpires, however, that jurisprudential effort of conceptualizing global administrative law largely depends on its prior task of settling much broader issues, such as the relation between the core and peripheral concept of international law and the theoretical sustainability of “graduated normativity” of international legal instruments.

Judicial Globalization and Global Administrative Law: The Particularity of the Proliferation of International Courts

One of the most profound developments in contemporary law and society is the new importance attached to international law (IL). A particularly striking trend in this regard is the increased juridification of international relations, performed by a growing number of international courts (ICs). Whereas only a handful of ICs existed in the mid-1980s, there are now at least 24 in operation, and there are indications of further growth. This paper traces the evolution of ICs and compares it with the parallel development of Global Administrative Law (GAL). It argues that although the development of ICs in part overlaps with the emergence of Global Administrative Law (GAL), it is also different, in important qualitative and quantitative ways. The main difference, the paper argues, is the central role of states with regard to ICs. This creates a different set of issues with regard to legitimacy as it generally makes ICs more susceptible to accusations of politicization.

The Procedural Side of Legal Globalization: The Case of the World Heritage Convention

The conceptual premise of Global Administrative Law is that, in order to cope with globalization, states’ right to regulate has been increasingly entrusted to global authorities, adopting rules and decisions which are best conceptualized as administrative regulation.Therefore, GAL is an answer to vertical and substantial institutional and legal globalization and it develops in order to avoid the risk of an administrative regulation (which goes global) unregulated by administrative law (which remains domestic).This paper, however, takes a slightly different approach to GAL. Focused on the impact of global regulatory regimes on domestic regulation, it argues that those regimes change the very nature of domestic rules and decisions as long as they are adopted according to decision-making processes open to the participation of external subjects, representing the interests of different political communities.From this perspective, GAL, conceived as global law regulating domestic regulation, is not an answer to vertical and substantial institutional and legal globalization, and contributes to the development of a horizontal and procedural path to legal globalization.The paper maintains this point by examining a single global regulatory regime -- namely the World Heritage Convention regime -- and, particularly, by considering three specific cases, referring to three different domestic administrative decisions, to whom that Convention has been applied. The World Heritage Convention regime -- as well as many other global regulatory regimes -- places on domestic authorities the burden of taking into account the global interests affected by their decisions. This is a typical procedural burden, drawn from the heritage of (domestic) administrative law. Thus, legal globalization progresses along a procedural path and according to administrative law (rather than private law) concepts.

Where does GAL find its legal grounding?

Historically, administrative law has evolved as a body of law internal to the legal orders of nation states, governing the functioning of the state administrative machinery and its relationships with the addressees of administrative action. But what about global administrative law (GAL), which regulates the functioning of a vast array of new types of administrations beyond the state? Under what legal order is GAL emerging and consolidating? This short contribution on GAL aims to underline the fact that four main conceptions co-exist in GAL scholarship. They link GAL, respectively, to the legal orders in terms of the sector run by global regulatory systems, to the “global administrative space,” to the “global polity,” and to the “global legal order.” Each of these conceptions encapsulates a specific functional and normative understanding of GAL. None of them, however, is fully convincing. In this sense, this contribution intends to draw the attention of GAL scholarship to an unresolved issue and to call for further reflection on the merits and the shortcomings of the various conceptions, as well as on possible alternatives.

What if global administrative law is a normative project?

Since its birth, a decade ago, the global administrative law (GAL) project has been criticized for the lack of elaboration of its normative foundations. GAL scholars either belittle the import ance of the “normative deficit” question, or they cautiously suggest that the GAL project is “normatively modest” and its constitutional ambition limited. The aim of this contribution is to challenge that modesty and suggest one way of reconciling GAL with constitutionalism. In the following, I argue that (a) GAL focuses on three functional dimensions—global regulation, global execution, and global adjudication—each involving a different legitimacy problem; (b) GAL scholarship proposes for each problem a specific recipe, that, despite its seemingly “neutral” administrative envelope, bears a normative content; (c) this normativity can be best conceptualized in constitutional terms, by relying on the theoretical framework offered by constitutional pluralism, in its cosmopolitan version.

The normative dimensions and performance of global administrative law

Global administrative law (GAL) scholarship largely follows a positivist approach. A priority is systematic work, both theoretical and applied, on the normative foundations and performance of GAL’s procedural and institutional elements. This enterprise must address four overlapping types of normative contributions that GAL can make to global regulation and administration: enhancing the net effectiveness of global regulation, thereby promoting social welfare and providing other benefits; promoting more public-regarding decision-making, mitigating institutional tunnel vision and domination by the powerful; securing rights against arbitrary and unlawful impositions; and nurturing democratic values and practises in both global and domestic administration.