Contracts and Private Law in the Emerging Ecology of International Lawmaking
“Contracts and Private Law in the Emerging Ecology of International Lawmaking,” accepted for inclusion in MAKING GLOBAL MARKETS WORK: CONTRACTS, PRICES AND INSTITUTIONS IN THE LONG TWENTIETH CENTURY (Gregoire Mallard and Jerome Sgard, eds), Forthcoming
41 Pages Posted: 16 Dec 2014 Last revised: 11 Mar 2015
Date Written: December 15, 2014
The creation of global markets rarely proceeds without the creation of institutions to enable and set parameters around global market actors, whether multinational companies, seafaring carriers, international banks or other private global investors. And yet little is known about the institutional matrix of lawmaking organizations on which markets depend. What is known about the proliferation of international institutions to rationalize the legal framework for global trade has prompted socio-legal scholars to question whether this accumulation of organizations creates legal fragmentation (Koskenniemi 2002), complexity (Alter; Kennedy), harmonization or subversion (Schaffer and Pollack 2010; Mallard 2014), the institutionalization of transnational legal orders (Halliday & Shaffer 2015a; Block-Lieb & Halliday 2015), or contestations among their proponents (Halliday & Shaffer 2015b).
This paper provides the long view of a complex of international lawmaking organizations that emerged over 150 years, ultimately to constitute an ecology of international trade lawmaking. Among other goals and practices of these organizations, the formation and evolution of this ecology turned substantially on negotiations and disputes among lawmaking IOs about which of them had the authority to formulate international instruments governing private parties’ contractual practices, a broad terrain of law that is characterized most commonly as international private law (e.g., laws governing private contracts and the relationships between private actors as opposed to laws governing the interactions or agreements between states).
More particularly, we examine the emergence of three principal organizations over more than a century - the Hague Conference on Private International Law, the International Institute for the Unification of Private Law (first known as the Rome Institute and later renamed UNIDROIT) and the UN Commission on International Trade Law (UNCITRAL) - in order to advance an ecological theory of international organizations (Block-Lieb and Halliday 2011a and b; Abbott et al. In Press). Such a theory would explain the emergence of these organizations and the lawmaking ecology in the geopolitical and economic contexts and conditions of their respective foundings. It would identify how each IO demarcated its boundaries vis-à-vis other IOs and claimed niches to ensure resources sufficient minimally for survival and optimally for competitive advantage.
By employing ecological theory in the analysis of institutional complexification, we shift the central focus of socio-legal analyses of global legal complexity from an emphasis on textual interpretations of rules (Koskenniemi 2002; Schaffer and Pollack 2010; Mallard 2014) to a focus on assertions of competence, claims of legitimacy, and other boundary-marking practices leading to more or less settlement of relations among potentially competitive international trade lawmaking bodies. Hence we will pay less attention to the substantive law created by the Hague Conference, UNIDROIT and UNCITRAL for the governance of global trade and more to their claims to authority over a specific territory in the terrains of contractual law.
Building upon studies of professional conflicts and settlements in an ecological setting (Abbott 1988:69), we distinguish among different ways in which IOs have managed territorial conflicts so that their constellation formed a moving equilibrium which itself was constrained, enabled, and propelled by historical events. These settlements variously involved: full authority, when an IO successfully asserted its exclusivity over an issue area; subordination, when various IOs recognized each but understand their relationships hierarchically; division of labor, when IOs chose cooperation over direct competition in an horizontal playing field that involved the differentiation of tasks; and market segmentation, when IOs cooperate to divide the global terrain according to issue areas of particular salience.
There are two innovations we offer in this theoretical orientation. On the one hand, ecology theory has rarely been applied to the social space of international organizations (although cf. Abbott et al In Press). On the other hand, ecology theory in general has attended relatively less to the emergence of ecologies than the dynamics of already functioning ecologies.
We advance this conjunction of ecological explanations with the institutionalization of meta-law governing contractual practices in four steps. First, we step back into the nineteenth century to sketch the origins of an impetus toward the unification of private and other international law standards, not least with the conferences convened as the Hague Conference on Private International Law. Second, we observe in some detail the emergence of an entity, the Rome Institute, later renamed as UNIDROIT, as a product of the League of Nations between World War I and II. Third, we demonstrate that a seeming settlement among international lawmaking IOs was disturbed by the founding of new IOs in the economic and geopolitical turbulence of the 1960s, most notably with the contested founded of UNCITRAL in 1964. Fourth, we demonstrate that after three decades of lawmaking co-existence through the fall of the Soviet command economies and the subsequent debt crises of the 1990s, the lawmaking ecology was again unsettled as its most prominent actors sought to reconstitute themselves, and their relations with each other, in a new geopolitical and economic world order. The paper concludes with a retrospective long view of the ways ecological processes shaped both the institutional and substantive parameters of contracting in increasingly globalized markets.
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