What of Litigation? Domestic Courts and Lawmaking Processes in Transnational Law

Abstract

Since its origins, the field of transnational law has been particularly captivated by three processes of lawmaking: transnational private rulemaking, the harmonization of national legislation through the spread of model laws, and the development of international treaties and conventions. This article argues that this particular focus has outrun its utility as transnational legal mobilizations increasing turn to litigation before domestic courts in order to transform legal systems and the manner in which they are enforced. Drawing on illustrations from strategic environmental litigation, this article articulates a necessary shift in focus in order to account for the growth in transnational cases and strategies of environmental and climate litigation. Domestic litigation has become an important process of transnational lawmaking in so far that litigation is used to hold international business actors to account for the social and environmental harms associated with their corporate families and global value chains. The article also articulates how common transnational strategies of domestic litigation are developed around harmonized or convergent aspects of national law and supranational legal norms. The rising importance of domestic litigation also brings into question transnational law’s historical characterization as a field developed around ‘the commonsense of capitalism,’ as the cases and strategies now brought into focus seek to challenge and limit the power of international business actors.

Keywords: transnational law, lawmaking, litigation, courts, legal mobilization