Incrementalisms in Global Lawmaking

Abstract

The benefits of incrementalism are frequently lauded in international lawmaking. Scholars argue that these benefits accrue to international organizations with limited resources or to nation-states that are reluctant to move too fast. Using the case of UNCITRAL's (the United Nations Commission on International Trade Law) global lawmaking over the last forty years, we develop the concept of incrementalism in two ways. First, we show that incrementalism takes at least three forms: vertical incrementalism occurs when international organizations dig more deeply in a particular area over progressive rounds; horizontal incrementalism can be observed when international organizations successively expand the substantive boundaries of the range of topics they seek to embrace; pyramidal incrementalism occurs when an international organization deliberately drafts its norms by standing on the shoulders of prior efforts of other international organizations. Second, international organizations use these several incrementalisms to build both general institutional legitimacy and authority in a particular area of global lawmaking. Following the theory of legitimacy in international organizations, we find that incrementalism facilitates legitimacy because it assists an international organization in promoting a perception of its effectiveness to the international community and sovereign states. Over time, a succession of incremental improvements sets up expectations that its success will occur as a matter of course. By using incrementalism to build legitimacy, simultaneously international organizations strengthen their own authority, build expectations of success in the production of global norms, and increase the probability that global norms will be adopted. Insolvency law highlights the relationships between incrementalism and legitimacy because international agreement on the substance of insolvency law was perceived by many to present insoluble difficulties. A special focus on UNCITRAL's Working Group on Insolvency Law, the Commission's Model Law on Cross-Border Insolvency, and its Legislative Guide on Insolvency Law, demonstrates the interplay of incrementalisms and raises further questions about their implications for legitimacy.