National Legal Systems And Globalization

This book presents the results of research project financed by the Hague Institute for the Internationalization of Law (HiiL) and carried out at the Tilburg Law and Economics Center (TILEC) of Tilburg University. The project team shows that globalization, instead of threatening national legal systems, put them in a new role and gives them continuing relevance. First of all, once one takes a more functional view of the law, based on law and economics and comparative law literature, harmonization or unification of national legal systems is no longer a foregone conclusion. Secondly, fundamental constitutional principles continue to bear in the era of multi-level and transnational governance: they become governance principles, divorced from specific institutional settings. Finally, looking beyond regulatory competition and comparative law, legal emulation provides a rich and fruitful model to explain the interplay between legal systems. This book explores these three themes, both at a theoretical level and in the light of specific examples.

The book provides an overview of how international law is today constructed through diverse macro and microprocesses that expand its traditional subjects and sources, with the attribution of sovereign capacity and power to the international plane (moving the international toward the national). Simultaneously, national laws approximate laws of other nations (moving among nations or moving the national toward the international) and new sources of legal norms emerge, independent of states and international organisations. This expansion occurs in many subject areas, with specific structures: commercial, environmental, human rights, humanitarian, financial, criminal and labor law contribute to the formation of post national law with different modes of functioning, different actors and different sources of law that should be understood as a new complexity of law.

Horatia Muir Watt and Diego P. Fernández-Arroyo: Introduction: The Relevance of Private International Law to the Global Governance Debate Part I: BEHIND CLOSED DOORS: THE PRIVATE MODEL AND ITS DISCONTENTS Section A. Epistemological Challenge: The Meaning of 'Private' in Private International Law 1: Geoffrey Samuel: Comparative Law as Resistance 2: Robert Wai: Private v Private: Transnational Private Law and Contestation in Global Economic Governance 3: Ralf Michaels: Post-critical Private International Law: From Politics to Technique Section B. Political Critique: Privatization as Homogenization 4: Tomaso Ferrando: Global Land Grabbing: A Tale of Three Legal Homogenizations 5: Veronica Corcodel: Governance Implications of Comparative Legal Thinking: On Henry Maine's Jurisprudence and British Imperialism Section C. Searching for Legitimacy: Questions of Design 6: Diego P. Fernández-Arroyo: Private Adjudication Without Precedent? 7: Gilles Cuniberti: The Merchant Who Would Not Be King: Unreasoned Fears about Private Lawmaking 8: Yannick Radi: Balancing the Public and the Private in International Investment Law PART II: BEYOND THE SCHISM: EMERGING MODELS AND WORLDVIEWS Section A. The Global Turn to Informality: Pragmatism and Constructivism 9: Benoit Frydman: A Pragmatic Approach To Global Law 10: Harm Schepel: Rules of Recognition: A Legal Constructivist Approach to Transnational Private Regulation 11: Michael Karayanni: The Extraterritorial Application of Access to Justice Rights: On the Availability of Israeli Courts to Palestinian Plaintiffs Section B. Re-importing Public Law Methodology: Federalism and Constitutionalism 12: Alex Mills: Variable Geometry, Peer Governance, and the Public International Perspective on Private International Law 13: Jacco Bomhoff: The Constitution of the Conflict of Laws 14: Jérémy Heymann: Importing Proportionality to the Conflict of Laws Section C. Reinventing a Global Horizon: Working towards a Global Public Good 15: Bram van der Eem: Financial Stability and Private International Law 16: Ivana Isailovic: Recognition(and Mis-recognition) in Private International Law 17: Sabine Corneloup: Can Private International Law Contribute to Global Migration Governance? Horatia Muir Watt: Paradigm Change in Private International Law: Renewal, Circularity, or Decline?

Debate about globalization has raised some serious questions about the viability of the state. Jarrod Wiener argues here that there is a danger of making generalizations that the state has lost authority across a range of sovereignty issues.

This Advanced Introduction offers a fresh critical analysis of various dimensions of law and globalisation, drawing on historical, normative, theoretical, and linguistic methodologies. Its comprehensive and multidisciplinary approach spans the fields of global legal pluralism, comparative legal studies, and international law.

First published in 2011. Lawyers and the Rule of Law in an Era of Globalization focuses on the national and transnational processes transforming both the rule of law and the role of lawyers. The book draws on a framework that emphasizes the relationship between the national the international, the strategies of lawyers at various political levels, and the circulation of ideas and people. As such, it considers the 'rule of law', not as a normative ideal that has to be accomplished and realized, but rather as a field of action and discourse that emerges through complex relationships among experts, national elites and global institutions. Through detailed empirical work, the contributors all examine the relationship between law, politics and the state, focusing on lawyers and the social capital they possess and deploy, in order to understands the efficacy of the rule of law in different polities. This book will be invaluable for socio-legal scholars, students of the legal profession, as well as those with interests in law and development studies.

'International law' is no longer a sufficient rubric to describe the complexities of law in an era of globalization. Accordingly, this collection situates cross-border norm development at the intersection of interdisciplinary scholarship on comparative law, conflict of laws, civil procedure, cyberlaw, legal pluralism and the cultural analysis of law, as well as traditional international law. It provides a broad range of seminal articles on transnational law-making, governmental and non-governmental networks, judicial influence and cooperation across borders, the dialectical relationships among national, international and non-state legal norms, and the possibilities of 'bottom-up' and plural law-making processes. The introduction situates these articles within the framework of law and globalization and suggests four important ways in which such a framework enlarges the traditional focus of international law. This book, therefore, provides a crucial reference for scholars and practitioners seeking to understand the varied processes of norm development in the emerging global legal order.

Diplomacy is transforming and expanding its role as the method of interstate relations to a general instrument of communication among globalized societies. Adapting to globalization, the practice of diplomacy is shared by non-state participants, thus becoming privatized and popularized. This book offers a comprehensive understanding of the widening scope of public as well as private diplomacy and its normative framework. It features a practitioner’s inside view of diplomacy combined with interdisciplinary academic analysis.