Forming Transnational Dispute Settlement Norms: Soft Law and the Role of UNCITRAL's Regional Centre for Asia and the Pacific

Abstract

The movement toward greater inclusivity in global soft law making is set out against a backdrop of historically uneven representation in global institutions. Calls to expand participation aim at strengthening legitimacy through more inclusive representation and regional adaptation. An innovative effort to advance participation in soft law development began in 2012 with the establishment of the United Nations Commission on International Trade Law (“UNCITRAL”) Regional Centre for Asia and the Pacific. As the first Centre of its kind, it was charged with coordinating with private and public institutions in the Asia Pacific in the development, interpretation and application of global cross-border commercial and dispute settlement guidelines. The experience of this Centre offers a window into what this books describes as a new form of “Decentralized Transnational Legal Ordering.”

This book tests the proposition that the presence of regional centres has the potential to expand participation in global soft law making. It carries out a novel analysis of the influence of transnational engagement in overcoming representational deficits in the design of global soft law pertaining to cross-border dispute settlement. It does this by comparing the impact of two forms of engagement in the Asia-Pacific region, traditional ‘centralised’ engagement and the more recent ‘decentralised’ form, on the soft law-making process over a 10 year period. The former is characterised by formal intermittent participation in global deliberation processes at UN headquarters through Working Group II (dispute resolution) meetings prior to 2012, and the latter characterized by informal, localised and decentralised engagement facilitated through the regional centre after January 2012 when the UNCITRAL RCAP was established.

The books key findings, drawing on in-depth case studies, a survey of 50 legal practitioners involved in regional legal reform, and empirical analysis of UNCITRAL working group participation logs suggest that regional centers such as the UNCITRAL Regional Centre for the Asia-Pacific while still in their early development, have corresponded with the emergence of a new form of “decentralized transnational legal ordering” associated with growing regional engagement and participation in global soft law design. This is evidenced by a 63% increase in the frequency of Asia-Pacific regional input in WG II meetings, an 8% increase in official Asia-Pacific representation in the WG II, a 6.2% increase in the number of observers from the Asia-Pacific region, and an average increase of 32% in perceived levels of engagement and participation amongst regional stakeholders. Regional legal developments and innovations have likewise informed ongoing global innovation in soft law making, while inaugural localized and increasingly accessible intersession meetings have engaged a growing number of practitioners in conversations about soft law design. The substantive findings of this book, alongside unique methodological contributions in the design of a new set of indicators tracking regional participation, provide useful insights supporting the expansion of regional centres in areas with historically limited representation in global law making including from within Africa, the Middle East and South America.

‘Shahla Ali provides a richly detailed case study that illuminates how soft law is actually created and becomes effective. In doing so, she also shows how transnational dispute resolution norms are developed and how they become a form of legal regulation even in the absence of coercive enforcement power. Thus, this book is a must for scholars of global legal pluralism, practitioners of transnational dispute resolution, and all those interested in understanding in granular detail how international law is created and develops power over time.’
– Paul Schiff Berman, The George Washington University, US

‘Shahla Ali’s excellent new book on the role of UNCITRAL's Regional Centre for Asia and the Pacific in soft law-making shows the importance of rigorous, in-depth empirical analysis to test and support theoretical arguments calling for direct citizen participation to confirm the legitimacy of global norms.’
– Steven Wheatley, Lancaster University Law School, UK

‘International commercial arbitration has long been subject to criticism for unequal access to and participation in shaping the rules and practices of this transnational legal order. Professor Ali’s book breaks new ground on this key issue for the legitimacy of commercial arbitration by persuasively documenting a success story in broadening and deepening Asian state participation. The book shows that the success of UNCITRAL’s International Trade Law Regional Centre for Asia and the Pacific may provide a model for other regions.’
– Bryant Garth, UCI Law, US and author of Dealing in Virtue

‘This book leverages original data and novel methods to show convincingly how a regional soft lawmaking institution can overcome deliberative deficits, asymmetries in lawmaking influence, and failures to appropriate national and local creativity in global trade lawmaking. By imaginatively “mapping the middle,” Shahla Ali persuasively demonstrates the integral ways that a regional body can consolidate responsive transnational legal orders (TLOs) by harnessing state and non-state innovation and adaptations to diverse economic and legal contexts. In so doing Ali discovers new variants of TLOs and opens up exciting frontiers for research and theory.’
– Terence Halliday, American Bar Foundation, and co-author of Global Lawmakers: International Organizations in the Crafting of World Markets

‘This study of the growing role of Asia-Pacific countries in the governance of international dispute resolution combines sophisticated treatments of the relevant legal instruments and theoretical literature with rigorous empirical analyses. It is impossible to ignore this evidence of decentralized transnational legal ordering and how it might be fostered by regional institutions.’
– Kevin E. Davis, NYU School of Law, US

‘It is rare to have 5 years of our work performance scrutinized academically, and peer-reviewed. I cannot escape a sense of relief after reading this remarkable work by Professor Shahla Ali. Her work shows the importance of having more Regional Offices, not only of UNCITRAL, but, I dare to say, also of the HCCH and UNIDROIT. This book demonstrates how they are key enablers of legal reforms and relevant platforms to ensure equal access to legal knowledge. One of the possible conclusions reading this book, is that such work reduces non-tariff (sometimes invisible) trade barriers, and has tremendous side effects like levelling the playing field for practitioners and legal educators from parts of the world often meriting less attention and resources. For example, without such work, we would have never seen DPR Korea or Laos adopting the CISG and its core value: party autonomy. This book is indispensable for any one engaged with legal reforms based on international cooperation.’
– João Ribeiro-Bidaoui, Permanent Bureau of the Hague Conference on Private International Law (HCCH) and UNCITRAL Regional Centre for Asia and the Pacific (2013-2018)

‘This book provides an important, empirically grounded case study of UNCITRAL processes and their implications in Asia through its first regional center, the Regional Center for Asia and the Pacific established in 2012. The book is critical reading for those interested in participation and representation in the transnational legal ordering of dispute settlement norms, the increasing role of Asia globally, and the development of a regional transnational legal order within Asia regarding commercial dispute resolution. It supports an expansion of UNCITRAL regional centers to Africa, the Middle East, and South America.’
– Gregory Shaffer, Chancellor’s Professor, University of California, Irvine School of Law, US

‘This is an ambitious work. Ostensibly, it is about the role that UNCITRAL’s Regional Center Asia-Pacific (RCAP), based in Incheon, has played in promoting UNCITRAL soft law instruments in the Asia-Pacific. But along the way it considers the importance of soft law in developing transnational commercial legal norms generally and examines how Asia Pacific states have shaped and are being shaped by those norms. The book achieves its objectives through empirical and theoretical analyses and concludes by reflecting on the balance to be struck between centralised and regional approaches to globalisation. At a time when many Asia-Pacific jurisdictions are seeking to transform themselves into international commercial dispute resolution hubs for the post-COVID-19 era, it deserves a wide readership.’
– Judge Anselmo Reyes, Singapore International Commercial Court

‘An impressive work on a vital subject.’
– William W. Park, Professor of Law, Boston University, US

‘A powerful critique of Western-dominant legal orthodoxy, providing vital alternatives to the hegemonic narrative of International arbitration and mediation. Not only a “must-read,” but of urgent relevance to democratic resolutions of disputes in Asia and across the globe.’
– Hiroshi Fukurai, author of Original Nation Approaches to Intern-National Law (2021), past President of the Asian Law and Society Association (ALSA), Professor of Legal Studies/Sociology, UC Santa Cruz, US

‘International law poses a dilemma for emerging markets. Politically, former colonies rightly expect more of a say in its content; economically, stability and consistency may be more conducive to development. This illuminating new book describes decentralised transnational legal ordering as one outcome of this tension, tracking the activities of UNCITRAL’s Regional Centre for Asia and the Pacific and the manner in which it has enhanced the legitimacy — and, perhaps, the effectiveness — of global norm-making.’
– Simon Chesterman, Dean, Faculty of Law, National University of Singapore

Keywords: Global Law Making; Transnational Legal Orders; Citizen Engagement; Soft Law; UNCITRAL; Dispute Settlement Norms; Regional Centres; Decentralization

JEL Classification: K1, K33, K40, K41, K49