From October 2018, I will be Fellow at the Käte Hamburger Kolleg / Centre for Global Cooperation Research at Duisburg, Germany. I will be working on the project on “The Dark Sides of Transnational Cooperation: How Power is at Work in Polycentric Law”.
Abstract: In various fields like environment, trade, or finance, transnational legal regulation is a polycentric process, a global struggle for law, during which heterogeneous socie-tal expectations are transformed into legal norms. At the same time, such practice may consist in regulatory capture and/or the production of regulatory gaps. While actors cooperate to achieve certain forms of regulation, the conditions of future co-operation among a global multiplicity of actors are also affected through transna-tional regulatory arrangements. Global cooperation is thus no longer innocent.
As the recently leaked “Paradise Papers” have revealed, global cooperation is structured and enabled by a complex arrangement of regulatory fragments and regulatory gaps. Instead of the morality of legal—i.e. legalized—tax avoidance, the more important question is how the complex webs of national and international regulation (or “de-regulation”) have come into being and how they set the condi-tions of the addressed transnational business practice. The widely addressed moral problems of tax avoidance demonstrate that we may not want to welcome (global) cooperation in every respect. A “cosmopolitanism of the few” (David Kennedy) or even forms of “international aristocracy” (Philip Allott) do build upon and entail inter- or transnational cooperation. Complex forms of transgovernmental “network gov-ernance” (Anne-Marie Slaughter) “global administrative law” (NYU) or “new consti-tutionalism” (Stephen Gill and Claire Cutler) do not necessarily operate to the bene-fit of all. Borrowing from critical legal theory, the project seeks to scrutinize the transnational nexus of law and cooperation. It will ask:
- How does transnational legal regulation structure societal relations of power both across and within nation-state borders?
- How do networking actors cooperate to “capture” national and international regulation?
- How are complex regulatory fragments and regulatory gaps connected? How is global cooperation affected by this nexus?