Legitimation and Global Lawmaking
74 Pages Posted: 19 Dec 2006
Date Written: December 2006
In late 2004, the United Nations Commission on International Trade Law (UNCITRAL) concluded a five-year project to produce global standards on corporate bankruptcy law for national law-makers. Because insolvency law is so culturally contextualized, skeptics viewed any global consensus as either impossible to achieve or likely to result in language so vague as to be useless. Yet in a surprisingly short time, UNCITRAL produced its Legislative Guide on Insolvency Law. Even before completion of the Guide, international organizations, as well as reformers from advanced and developing economies, began using its provisions for standard-setting and national law reform. UNCITRAL's Legislative Guide presents more than a simple success story; adoption of the Legislative Guide on Insolvency Law presents a vantage point for generating a theory of conditions under which global organizations can resolve a central paradox of global lawmaking. The paradox is straightforward: international organizations must be legitimate to be effective; but effectiveness is subverted by the very process of legitimation. If law-making organizations are not considered legitimate, the principles or rules articulated by them will be less persuasive and hence less binding. In turn, a lower probability of compliance or adoption by nation-states will reduce global convergence around the norms. But to become legitimate through representation, international organizations must incorporate divergent interests, which at best complicate and at worst thwart consensual lawmaking. It is therefore both a scholarly challenge and a pragmatic necessity to understand what resolutions of this tension are possible in global lawmaking forums.
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By Peter Drahos