Interpreters of International Economic Law: Corporations and Bureaucrats in Contest over Chile's Nutrition Label

This article analyzes the everyday interpretive practices of corporations and bureaucrats that shape the meaning and force of international economic law. To understand how common practices such as public consultation submissions, corporate threat letters, and external legal assistance influence regulators' understanding of their “legally available” policy space, we study the contested introduction of a pioneering nutrition labeling regulation in Chile. The transnational food industry powerfully challenged the regulation's legality under World Trade Organization law. But Chilean health bureaucrats, in coordination with segments of the country's legally highly competent economic bureaucracy, effectively defended the legality of their proposed regulatory measure. Drawing on data from freedom-of-information requests and in-depth interviews, the article argues that the outcomes of such interpretive contests are substantially shaped by participants' knowledge of the entitlements created by international economic law and thus by the international legal expertise they have access to. This often but not always puts transnational corporations at an advantage over national regulators in the strategic interpretation of international economic law.     

Similar in Their Differences: Transnational Legal Processes Addressing Money Laundering in Brazil and Argentina

The purpose of this article is to provide a comparative analysis of the transnational legal processes that Brazil and Argentina underwent to address money laundering. The article discusses the interaction between the Financial Action Task Force (FATF) norms and a number of changes both countries have experienced in the last decade. The comparison focuses on the three central pillars of the anti‐money laundering order (AMLO): criminalization, administrative obligations imposed on the financial sectors, and the creation of a financial intelligence unit. Building from the analytical framework developed by Shaffer (2011), the evidence gathered in this study illustrates different dimensions of state change and highlights the main challenges to assess the effectiveness (output legitimacy) of transnational legal orders empirically.     

HOW JUDGES DECIDE WHETHER SOCIAL PARENTS HAVE PARENTAL RIGHTS: A FIVE‐FACTOR TYPOLOGY

Courts have issued conflicting rulings regarding the rights (e.g., custody, visitation) and responsibilities (e.g., child support) of non‐biological gay parents. This analysis establishes a typology of five factors that most commonly influence judges' decisions. These factors include: interpretation of parenting statutes, legislative intent, parental intent, legal documents establishing parenthood, and the child's best interests. Despite these common themes, there is still much discrepancy among court rulings. Based on this analysis, there are steps parents can take to protect their legal rights and living arrangements. Finally, policy suggestions are offered for courts and lawmakers. These legal actors can take steps (e.g., clarifying statutes) that would provide certainty for families in case of parental separation or the biological parent's death.     

The Challenge of Universal Norms: Securing Effective Defence Rights Across Different Jurisdictions and Legal Cultures

This article considers the contribution of comparative empirical research in shaping best practice norms for custodial legal advice, and helping to address challenges in their implementation. It traces the role of ECtHR decisions and EU Directives in developing transnational norms to strengthen suspects’ right to legal assistance. Recognizing how these norms are translated into the national context, it considers the value of comparative empirical and socio‐legal research in helping to develop legislative and training measures; how roles and responsibilities are shared out in different legal systems and traditions; and practical arrangements that facilitate or inhibit the effectiveness of custodial legal advice in practice. There is a tension between framing transnational norms that are sufficiently universal to attract support, without being so broad as to lack any transformational force, and sufficiently detailed to ensure respect for core protections without imposing legal requirements too rigid and difficult to be absorbed into diverse processes of criminal justice.     

The Argument from Transnational Effects I: Representing Outsiders through Freedom of Movement

This article and its sequel examine an argument that has become a shibboleth for the European pro‐attitude towards international and supranational legal arrangements. I call it the argument from transnational effects. The argument says that supranational or transnational forms of integration, in particular market integration, are desirable on account of democracy itself. National democracies find themselves thereby forced to confront and to internalise the externalities that they cause for one another. A fortiori, democracy becomes supposedly emancipated from the confines of the nation state. Since the argument favours normative limitations on national political processes it seems to lend strong support to the introduction of transnational constitutional discipline. In this article and its sequel it is claimed that the argument, correctly understood, cannot support the creation of transnational democracy. Rather, in a critically recalibrated form, the argument, paradoxically, provides strong backing for the existence of bounded political communities without, for that reason, succumbing to ontologically questionable beliefs about the essence of national communities. Hence, the argument is really as much about the limits set to transnational integration as it is about their legitimacy. This explains why it is of central relevance to constitutionalism in a global age. The opening sections of this article offer an interpretation of John Hart Ely's constitutional theory. Examining the latter helps to articulate adequately the democratic sensibility expressed in the argument. It is argued that Ely's theory exceeds the scope of a mere theory of judicial review. It presents, indeed, a theory of constitutional authority, which is highly relevant to an analysis of the argument from transnational effects. The article then distinguishes and discusses two different readings of the representation‐reinforcing task that Ely attributes to constitutional legality. According to one reading, representation is secondary and only ancillary to the realisation of equality. According to another reading, equal participation is prerequisite to the success of representative democracy whose aim is to discover common ground. It is concluded that the first reading is easier to accommodate in a transnational setting. It will be seen that Ely's theory—at any rate, the first reading of it—is basically concerned with the problem addressed by the argument from transnational effects. This article's discussion of the argument distinguishes two different types of situation. A third, more general type will be dealt with in a subsequent article. The first situation affects people who realise that they would be better off if they were to benefit from the laws of a different democracy. Hence, they would like to have these laws imported. It is argued that their interests do not find support in the argument from transnational effects. The second situation concerns someone who encounters obstacles when moving from one democracy to another. Such obstacles can emerge either as a result of discrimination against non‐nationals or from the sheer fact that laws between and among bounded societies are different. The antidote against the latter is to submit national legislation to a proportionality test. Even though reinforcing representation prima facie seems to support this conclusion, the article claims that virtual representation, correctly understood, actually restricts the sweep of constitutional control to cases of behavioural discrimination. Extending the scope of control would actually violate the respect that it is owed to national democratic autonomy pursuant to the principle of virtual representation. It is also shown that only by limiting its sweep the argument from transnational effects can be prevented from endorsing neoliberal political goals.     

Mobilizing Truth: Agenda Setting in a Transnational Social Movement

This article provides a neoinstitutionalist account of how a transnational social movement (TSM) sets its agenda. A theoretical framework is presented to reveal how logics from the transnational and local organizational fields influence legal mobilization. To provide insight into how a TSM accommodates contradictory and competing logics within and between these fields, this article examines mobilization around a fact‐finding commission, sometimes called a truth commission, to address the ongoing social and political divides in Bosnia and Herzegovina (BiH). The findings, based on fieldwork conducted between 2009 and 2011, are used to develop the theoretical concept of a quasi‐judicial medium, a legal body that, initially, will appeal to a variety of actors, but may be unable to adequately address existing divides. The conclusions point to further directions in the study of transnational legal mobilization, particularly the conditions under which the ambiguity of a movement strategy helps meet and/or moderate movement goals.     

建立与发展中国跨国企业的法律思考

鼓励对外投资、建立跨国企业是增强国力、维护国家利益的重要措施。在我国经济、社会进步和经济全球化的背景之下 ,进一步发展我国的跨国企业是一个十分迫切的课题。在法律方面 ,我们有必要深入研究现阶段境外投资法律规范存在的问题 ,制定较为严密完整的境外投资法、制定系统的境外投资发展规划、制定保护和鼓励措施、增强法律咨询和督导 ,从而建构起一套切实而完备的境外投资法律制度。     

Legal Transnationalism: The Relationship between Transnational Social Movement Building and International Law

This article examines the compelling enigma of how the introduction of a new international law, the North American Agreement on Labor Cooperation (NAALC), helped stimulate labor cooperation and collaboration in the 1990s. It offers a theory of legal transnationalism—defined as processes by which international laws and legal mechanisms facilitate social movement building at the transnational level—that explains how nascent international legal institutions and mechanisms can help develop collective interests, build social movements, and, ultimately, stimulate cross‐border collaboration and cooperation. It identifies three primary dimensions of legal transnationalism that explain how international laws stimulate and constrain movement building through: (1) formation of collective identity and interests (constitutive effects), (2) facilitation of collective action (mobilization effects), and (3) adjudication and enforcement (redress effects).     

Between the Law: The Unmaking of Empire and Law's Imperial Amnesia

Asian victims of Japanese imperialism have filed lawsuits against the Japanese government and corporations since the 1990s, which became prime sites for redress decades after Japan's defeat in World War II. As this ethnography demonstrates, this process paradoxically exposes a legal lacuna within this emergent transnational legal space, with plaintiffs effectively caught between the law, instead of standing before the law. Exploring this absence of law, I map out a post‐imperial legal space, created through the erasure of imperial and colonial subjects in the legal framework after empire. Between the law is an optic that makes visible uneven legal terrains that embody temporal and spatial disjuncture, rupture, and asymmetry. The role of law in post‐imperial transitions remains underexplored in literatures on transnational law, legal imperialism, postcolonialism, and transitional justice. I demonstrate how, at the intersection of law and economy, post‐imperial reckoning is emerging as a new legal frontier, putting at stake law's imperial amnesia.     

Is it all going to waste? Illegal transports of e-waste in a European trade hub

This article responds to the call for more empirical knowledge about transnational environmental crime. It does so by analysing the case of illegal transports of electronic waste (e-waste) in a European trade hub. Given the complexity and global nature of transnational environmental crime, it is difficult to determine which actors are involved. In this regard, a local research setting allows the actors involved in illegal transports of e-waste to be identified. This research tries to determine whether these actors and their roles can be considered legal or illegal and illustrates the legal-illegal interfaces in e-waste flows. Moreover, this case study analyses the push, pull and facilitating factors and therefore looks at what motivations and opportunities shape the flows of e-waste in locations of origin, transit and destination. The results show that the social organisation and emergence of transnational environmental crime is on a thin line between legal and illegal which needs to be contextualised within the global reality of the locations of origin, transit and destination.     

Fixing Transnational Drug Policy: Drug Prohibition in the Eyes of Comparative Law

Drug prohibition allows us to study over a significant period of time how penal provisions framed at a supranational level flow, settle, and unsettle across different countries. At a time of growing doubt about the benefit of criminalization of drug use, it also provides a case‐study as to how epistemic communities may rely on comparative research to identify best practices and promote them as normative alternatives in the face of a long‐entrenched legal dogma. In order to explore these issues, this article looks at the UN drug control system from the perspective of comparative law. It shows how the concept of legal transplant provides a useful tool to understand the limits of transnational criminal law designed on a global scale to tackle the ‘drug problem', and it clarifies the various types of legal comparison that might contribute to addressing this failed transplant.     

Transnational constitutionalism – conflicts-law constitutionalism – economic constitutionalism: the exemplary case of the European Union

Transnational constitutionalism is both a sociological given and a legal challenge. We observe the emergence of ever more legally framed transnational arrangements with ever more power and impact. Do such arrangements deserve to be called legitimate rule in Habermasian terms? Is it at all conceivable that the proprium of law can be defended against the rise of its informal competitors? This article opts for a third way that listens to neither the siren songs on law beyond the state nor to the defences of nation-state constitutionalism as the monopolist of legitimate rule. The proposed alternative suggests that transnational legal ordering of the European Union should build on its reconceptualization as a ‘three-dimensional conflicts law’ with a democracy-enhancing potential. This reconceptualization operationalizes the ‘united in diversity’ motto of the Draft Constitutional Treaty of 2004, preserves the essential accomplishments of Europe's constitutional democracies, provides for co-operative problem solving of transnational regulatory tasks, and retains supervisory powers over national and transnational arrangements of private governance.     

What Is Transnational Law?

Is it important to conceptualize transnational law and “map” it as a new legal field? This article suggests that to do so might help both juristic practice and sociolegal scholarship in organizing, linking, and comparing disparate but increasingly significant types of regulation. To explore the idea of transnational law is to raise basic questions about the nature of both “law” and “society” (taken as the realm law regulates). This involves radically rethinking relationships between the public and the private, between law and state, and between different sources of law and legal authority. Taking as its focus Von Daniels's The Concept of Law from a Transnational Perspective and Calliess and Zumbansen's Rough Consensus and Running Code (both 2010), the article considers what approaches may be most productive, and what key issues need to be addressed, to make sense of broad trends in law's extension beyond the boundaries of nation‐states.     

European Law Beyond ‘Ever Closer Union’ Repositioning the Concept,its Thrust and the ECJ's Comparative Methodology

The article investigates competing understandings of European law. It supports, against the prevailing EU‐centred understanding, an ecumenical concept that embraces EU law, supplementing international instruments, the European Convention on Human Rights and, importantly, various domestic laws enacting or responding to such transnational law, as well as European comparative law. To keep the concept in sync with European politics, it posits a new idea that binds the parts together: to provide for a European legal space rather than further European integration (the ever closer union). This idea can also serve as European law's functional equivalent to forming one legal order. European law thus conceived grasps the puzzling complex of interdependent legal orders, sets a common frame for corresponding reconstructions (European composite constructions, legal pluralism, network theories, federalism or intergovernmentalism) and allows forces with diverging outlooks to meet in one legal field, on one more neutral disciplinary platform. Within this framework, European comparative law finds a new mission as well as a sound legal basis.     

Out of the woods: the illegal trade in tropical timber and a European trade hub

This article responds to the call for more empirical knowledge about transnational environmental crime by analysing the illegal trade in tropical timber. It aims to provide insights into the social organisation of the illegal transports of tropical timber within the local research setting of the port of Antwerp (Belgium) but meanwhile pays attention to elements throughout the flows from locations of origin over transit to destination. It is often difficult to determine which legal and illegal actors are involved in transnational environmental crime. This research sheds light on the legal–illegal interfaces in tropical timber flows connected to this European setting. The results show that the social organisation of transnational environmental crime is shaped by the global context of the places of origin, transit and destination, where it is continuously on a thin line between legal and illegal.     

Transnational Anticorruption Law in Action: Cases from Argentina and Brazil

Debates over whether transnational and international legal institutions are fair, effective, or legitimate responses to corruption of local public officials have an important empirical dimension. We use case studies to examine whether foreign legal institutions serve as fair, effective, and legitimate complements to local anticorruption institutions. We refer to this set of claims as the “institutional complementarity theory.” The first case study centers on proceedings concerning bribes paid by subsidiaries of Siemens AG, a German company, to obtain and retain a contract to provide national identity cards for the Argentine government. The second case study examines events stemming from overbilling in the construction of a courthouse in Brazil. Analysis of these cases suggests that the institutional complementary theory is credible. At the same time, the findings suggest that local institutions have greater potential, and foreign institutions have more limited potential, than the theory assumes.     

Getting Schooled: Legal Mobilization as an Educative Process

This article explores the role of formal education and specific legal knowledge in the process of legal mobilization. Using survey data and in‐depth case narratives of workplace disputes in China, we highlight three major findings. First, and uncontroversially, higher levels of formal education are associated with greater propensity to use legal institutions and to find them more effective. Second, informally acquired labor law knowledge can substitute for formal education in bringing people to the legal system and improving their legal experiences. The Chinese state's propagation of legal knowledge has had positive effects on citizens' legal mobilization. Finally, while education and legal knowledge are factors that push people toward the legal system, actual dispute experience leads people away from it, especially among disputants without effective legal representation. The article concludes that the Chinese state's encouragement of individualized legal mobilization produces contradictory outcomes—encouraging citizens to use formal legal institutions, imbuing them with new knowledge and rights awareness, but also breeding disdain for the law in practice.     

The Argument from Transnational Effects II: Establishing Transnational Democracy

This article continues with a discussion of what the author calls the argument from transnational effects. It says that supranational or transnational forms of integration, in particular market integration, are desirable on account of democracy itself. National democracies find themselves thereby forced to confront and to internalise the externalities that they cause for each other. A fortiori, democracy becomes supposedly emancipated from the confines of the nation state. This article examines the argument critically at a general level. The situation under consideration concerns all cases in which, regardless of whether there is movement or not, the acts of one democracy adversely impact on the interests of others. The article tries to identify instances where the harm is tied to a failure of representation in a transnational context and not caught by the harm principle, broadly understood. In order to calibrate the argument's scope the article resorts to the principle of universalisation. The guiding intuition is that so long as the act of one democracy is morally justified on the basis of this principle, the argument from transnational effects does not apply. Hence the argument is of no avail where the impact of one democracy on another is perfectly legitimate. This would be the case, for example, when the effects are too insignificant to require any debate. Determining the range of legitimate impact is a core question of transnational constitutional law. Any such determination presupposes mutually shared interest definitions. More often than not, however, the relevant interest definitions underlying universalisation are debatable. Therefore, it appears to be inevitable, at first glance, to have relations of transnational interdependency matched by transnational democratic processes. The article then goes on to identify three different types of universalitation with reference to what can be regarded as their respective anchor. Simple universalisation is based upon shared interest definitions. Reflexive universalisation involves common views of oneself (and others). Self‐transcending universalisation is grounded in the desire to live in a free society. Reflexive universalisation requires to extend mutual sympathy. From this perspective, transnational democratic processes are tantamount to nation‐building. However, one would commit a sentimentalist fallacy if one were to conclude that mutual sympathy in and of itself engenders an expansion of mutual responsibility. The article argues that with regard to the third type of universalisation the institutionalisation of transnational democratic procedures cannot be justified. It would threaten to undermine various conceptions of a free society. It is argued that for the sake of the realisation of equal citizenship the argument from transnational effects actually needs to endorse the existence of bounded democratic communities. Unbounded transnational democracy would exercise an adverse effect on citizenship. It also turns out that the argument from transnational effects, in its uncorrected form, remains haunted by the dilemma that the type of democracy that is envisaged by it becomes easily absorbed by administrative processes. The article concludes that the argument from transnational effects, correctly understood, has a more modest import than its proponents would have us believe. Rather than supporting the release of democracy from its national bounds, it helps to explain why the co‐existence of bounded democratic polities remains essential to equal citizenship. More forceful versions of transnational integration graft onto political societies elements that are not genuinely democratic and strangely reminiscent of different forms of rule. These are forms of rule that Aristotle would not have called ‘political’, for they do not involve the exercise of power by equals over equals.