Tag Archives: Transnational Law

Fellowship at Käte Hamburger Kolleg, Duisburg

Since October 2018, I am Fellow at the Käte Hamburger Kolleg / Centre for Global Cooperation Research at Duisburg, Germany. I am 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?

Forthcoming: Transnational Human Rights Litigation and Territorialized Knowledge: Kiobel and the ‘Politics of Space’

The paper “Transnational Human Rights Litigation and Territorialized Knowledge: Kiobel and the Politics of Space” is forthcoming in Transnational Legal Theory (vol. 5, Issue 1). A pre-version is now online on SSRN under http://ssrn.com/abstract=2370413

Abstract:
In Kiobel v. Royal Dutch Petroleum Dutch and British private corporations were accused of having aided and abetted in the violation of the human rights of individuals in Nigeria. A lawsuit, however, was brought in the United States, relying on the Alien Tort Statute — part of a Judiciary Act from 1789. In its final decision on the case, the US Supreme Court has strongly focused on ‘territory.’ This usage of a spatial category calls for closer scrutiny of how the making of legal arguments presupposes ‘spatial knowledge,’ especially in the field of transnational human rights litigation. Space is hardly a neutral category. What is at stake is normativity in a global scale with the domestic courtroom turned into a site of spatial contestation. The paper is interested in the construction of ‘the transnational’ as space, which implicates a ‘politics of space’ at work underneath the exposed surface of legal argumentation. The ‘Kiobel situation’ as it unfolded before the Supreme Court is addressed as example of a broader picture including a variety of contested elements of space: a particular spatial condition of modern nation-state territoriality; the production of ‘counter-space,’ eventually undermining the spatial regime of inter-state society; and the state not accepting its withering away. The paper will ask: How are normative boundaries between the involved jurisdictional spaces drawn? How do the ‘politics of space’ work underneath or beyond the plain moments of judicial decision-making? How territorialized is the legal knowledge at work and how does territoriality work in legal arguments?

Read article online under: http://ssrn.com/abstract=2370413