'The double movement of law and expertise' in Erin Hannah, James Scott, Silke
Trommer (eds)., Expert Knowedlge in Global Trade (Routledge: 2016)
'Twenty years of the WTO Appellate Body’s “fragmentation jurisprudence”' Journal
of International Trade Law and Policy (2015) 14 (3) pp.116-125
This paper aims to reflect on the first 20 years of the World Trade Organization
(WTO) Appellate Body’s jurisprudence, specifically as it relates to questions of
normative fragmentation. It provides an overview of some of the highlights of
the WTO’s jurisprudence as it pertains to fragmentation, with particular focus
on the use of general public international law in the context of the WTO dispute
settlement.
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'New Legal Realism, Empiricism, and Scientism: The Relative Objectivity of Law
and Social Science' Leiden Journal of International Law (2015), 28, pp.
pp.231–254
In this article, I suggest that one of the central characteristics of New Legal
Realism is the productive tension between empiricist and pragmatist theories of
knowledge which lies at its core. On one side, new realist work in its
empiricist posture seeks to use empirical knowledge of the world as the basis on
which to design, interpret, apply, and criticize the law. On the other, in its
pragmatist moments, it explicitly draws attention to the social and political
contingency of any claims to empirical knowledge of the world, including its
own. As a consequence, it is distinctive of much scholarship in the New Legal
Realist vein that it continually enacts creative syntheses of different
philosophies of truth in an attempt to be, in Shaffer’s words, 'positivist . . .
interpretivist, and legal realist all at once'. The first part of this article
draws on existing historical accounts of legal realism briefly to trace the
problematic and ambiguous place of scientism in the legal realist tradition.
Then, in the second and more important part of the article, I argue that the
ambivalence of the legal realists’ vision has left us, in certain contexts, with
a complicated form of mixed legal-scientific governance which has proved
remarkably and surprisingly resilient in the face of late twentieth century
critiques of scientific objectivity. This may be one of the most enduring
legacies of the ‘old’ legal realists for those today who work in the New Legal
Realist vein.
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(with Susan Marks) 'People with Projects: Writing the Lives of
International Lawyers', 27 Temple International and Comparative Law Journal
(2014) 437-453
'The Consequences of Brexit: Some Complications From International Law' LSE Law: Policy Briefing Papers
3/2014
Over the last few decades, the United Kingdom has experienced a profound – if quiet – constitutional transformation. But these developments have hardly been appreciated within broader public debates, which remain rooted in/anchored to notions of parliamentary sovereignty. In this paper, we describe the broad contours of constitutional change in the UK over the last decades. We also ask the question, what can and should courts do when faced with ‘unconstitutional’ legislation? We present the case for the development of a modest range of new constitutional review powers for the courts in the coming years.
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'Governing "As If": Global Subsidies Regulation and the Benchmark Problem'
Current Legal Problems (2014) Volume 67, Issue 1 pp. 135-168.
As a result of the extraordinary work of Foucault, Shapin and Schaffer, Porter, and many others, we are familiar with many of the practices of governance which emerged during the 19th century at the intersection of the modern social sciences and the modern state, as
'naturalized' knowledge of an objectified social body formed the foundation of specific kinds of social and political order. But over the course of the 20th century, critiques of objectivity have become commonplace, and a post-positivist epistemological revolution has taken root in many quarters. How, then, have practices of governance-through-knowledge modified themselves in response to a century of such critiques? This article takes inspiration from the work of Jasanoff, Riles, Latour and others to identify a mode of
'governing as if': a pragmatic mode of governance which works not through the production of objective knowledge as the shared epistemic foundation for political settlements, but rather by generating knowledge claims that stabilize social orderings precisely through their self-conscious partiality, contingency, and context-dependence. This argument is developed using the illustration of global subsidies regulation in World Trade Organization law, focussing in particular on the knowledge practices by which particular conceptions of
'the market' are produced and deployed in the course of its operation. The article argues that the standard criticisms of naturalized economic conceptions of the
'free market', developed in various scholarly traditions throughout the 20th century, do not provide an adequate account of economic governance working in
'as if' mode, either positively or normatively. It further argues, following Riles, that such regimes of governance derive their effectiveness fundamentally from their
'hollow core', and that it is in the constant and active work of 'hollowing out' that we are likely to find their characteristic modalities of power and underlying structural dynamics.
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'The Role of the International Court of Justice in a Context of Fragmentation',
International and Comparative Law Quarterly, 62 (4) (2013), pp.777-812
Over a decade ago, an important debate began concerning the
proper role of the International Court of Justice (ICJ) in an international
legal universe characterized by a large and rapidly increasing number of
specialized courts and tribunals. What functions can and should the Court
perform in response to the fragmentation of international law, and the
proliferation of international tribunals? Initial proposals, especially
those emerging in the late 1990s, were hierarchical and centralist in their
orientation, and have justifiably fallen out of favour. This article uses
the current international legal disputes about Australia's plain packaging
tobacco legislation as the basis for an exploration of the possibilities for
an alternative, non-centralist vision for the ICJ, which is sensitive both
to the institutional limits of the international judiciary, and to the
benefits of a fundamentally pluralist international legal order.
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'Emmanuelle Jouannet. The Liberal-Welfarist Law of Nations: A History of
International Law' European Journal of International Law 2013 24:
712-714
'The legal construction of economic rationalities' J. Law & Soc. 2013,
40(1)pp.155-171.
Asks what the role of the law is in the construction and
maintenance of forms and practices of calculative rationality in modern
markets. Considers the role of sociology, and the work of classical and
modern sociologists, in analyzing and influencing the role of the law in the
economic sphere, and the potential for a new economic sociology of the law
to explain how the law interacts with social and economic structures to
constitute the meaning of rationality. Examines the construction of the
rational economic subject and economic rationalities, and the cognitive
infrastructures of markets.
'Legal regimes and professional knowledges: the internal politics of regime
definition' in Young, Regime Interaction in International Law: Facing
Fragmentation (Cambridge UP, 2012)
Trade Agreements, Business and Human Rights: The case of export processing
zones - April 2010 Working Paper No. 57 : A Working Paper of the: Corporate
Social Responsibility Initiative
This report was prepared…to inform the mandate of the
Special Representative of the UN Secretary-General on Business and Human
Rights…The proliferation [of Export Processing Zones (EPZs)] has been of
some concern to many within the human rights movement, primarily because of
some evidence of low and deteriorating labor standards within these zones…
The human rights impacts of EPZs include more than labor issues…This paper
draws on this existing work in exploring the relationship between trade
agreements, business and human rights based on the Protect, Respect and
Remedy Framework for dealing with business and human rights, first set forth
by the Special Representative in 2008… This paper focuses on the
implementation and operationalization of the Framework’s first pillar, the
State 'duty to protect' in the context of EPZs.
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(with Joanne Scott) 'The Hidden World of WTO Governance: A Rejoinder to Richard
H. Steinberg'
European Journal of International Law 2009 20
(4):1073-1076 [reprinted in Steger, Debra P, The World Trade
Organization: Critical Perspectives on the World Economy (London: Routledge
2014) pp.575-614]
'Inter-regime Encounters' in Joseph, Kinley and Waincymer (eds), WTO and
Human Rights (Edward Elgar 2009)
This collection of essays from leading academics examines the
connection between the World Trade Organization (WTO) and human rights issues, a
topic which has provoked significant debate, particularly in the decade since
the collapsed WTO talks in Seattle in 1999. The editors argue that a true
appreciation of the salient issues requires consideration of disciplines beyond
the law, such as economics, political science and philosophy. This book builds
on previous trade/human rights projects by adding that interdisciplinary
dimension.
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[with Professor Joanne Scott] 'The Hidden World of WTO Governance' European
Journal of International Law
2009 20(3):575-614
In academic literature the WTO is largely viewed as synonymous
with its novel system for the settlement of disputes. We seek to demonstrate in
this article that there is more to the WTO than this, and to exemplify this
claim by reference to two specific sites of non-judicial governance in the WTO.
We suggest that these two WTO committees perform important functions which are
largely hidden from view. In particular, we point to the role that they play in
generating and disseminating information, and as facilitators of technical
assistance and regulatory learning. We also suggest that these committees
contribute to the emergence of interpretive communities which serve to elaborate
upon the open-ended norms laid down in the relevant agreements.
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'Legal Regimes and Regimes of Knowledge: Governing Global Services Trade'
LSE Law, Society and Economy Working Paper Series, WPS 15-2009, July 2009
The starting point of this paper is that if we want
to understand the way in which international law structures and
mediates the deployment of power in international life, then we need
to attend to the relationship between law and knowledge - the
relationship between international legal processes and the processes
by which we collectively come to know, describe, and imagine the
world in which we live. My aim is to explore this relationship
empirically by looking in detail at one case study, namely the
international legal regime governing international trade in
services, and specifically, the World Trade Organisation's General
Agreement on Trade in Services. Over the last fifteen years, this
new body of international law has developed and evolved alongside a
corresponding body of social scientific expertise on the nature and
dynamics of the global services economy. I tell a story of the
co-evolution of these two systems - the legal regime on the one
hand, and the body of knowledge on the other - and try to trace in
detail the ways in which law and legal processes have been present
in processes of knowledge production, shaping the way the global
services economy is collectively imagined and its dynamics
understood. I offer four axes along which to think about this
relationship, corresponding to the concepts of constitution,
transmission, objectification and empowerment.
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'Taking Uncertainty Seriously: Adaptive Governance and International Trade: A
Rejoinder to Monica Garcia-Salmones' (with Rosie Cooney) (2009) European
Journal of International Law 20 (1) 187-192
It is always a pleasure and an honour to have a colleague
engage with one's work in detail. We are grateful, therefore, to Mónica
García-Salmones for her response to our article, and are pleased to have this
opportunity to clarify some aspects of our thinking and our approach that may
not have been explicit enough in the original piece. Given the limitations of
space available, we have decided to put to one side the many points of detail on
which we may differ from García-Salmones, and provide simply the broad outlines
of a response to the three primary lines of criticism which we understand
García-Salmones to be offering.
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'The Thirteenth Chime: Experimentalism and the Global Economy' (2008) 71(6)
Modern Law Review 984-1000
'Provisional measures under Article 5.7 of the WTO’s Agreement on Sanitary and
Phytosanitary Measures: Some Criticisms of the Jurisprudence so far', (Dec 2008)
Journal of World Trade
The purpose of this article is to identify two potential diffi
culties in the application of Article 5.7 which appear to follow from certain
statements made by panels and the Appellate Body in the jurisprudence under that
Article so far. The fi rst relates to the situation in which a WTO Member
legitimately takes provisional measures under Article 5.7, but refuses to
conduct further research as required by that Article. In such circumstances, it
is argued, the relevant violation is the failure to conduct further research,
not the taking of provisional measures - and the solution must therefore be to
require such further research, rather than to invalidate the provisional
measures themselves. The second relates to questions of evolving science, and
the extent to which Article 5.7 can and ought to remain available as a safe
harbour to Members even once a risk assessment has been carried out. It is
argued that in some circumstances it should: where substantive inadequacies and
limitations of the earlier risk assessment become apparent to policy makers, if
new evidence comes to light, and where a previously unconsidered risk is
identified. Under the current jurisprudence, it is not clear that Article 5.7
remains appropriately available in all such circumstances.
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'The General Agreement on Trade in Services', in Bethlehem, McRae and Neufeld
(eds), The Oxford Handbook of International Trade Law (OUP 2008).
This
Handbook places international trade law within its broader context, providing
comment and critique on contemporary thinking on a range of questions both
related specifically to the discipline of international trade law itself and to
the outside face of international trade law and its intersection with States and
other aspects of the international system. It examines the economic and
institutional context of the world trading system, its substantive law
(including regional trade regimes) and the settlement of disputes. The final
part of the book explores the wider framework of the world trading system,
considering issues including the relationship of the WTO to civil society, the
use of economic sanctions, state responsibility, and the regulation of
multinational corporations.
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'Institutions and International Trade: Some Lessons from Sociology' in Picker,
Bunn and Arner (eds)
International Economic Law: The State and Future of the Discipline
(Hart, 2008)
'Bretton Woods' has become shorthand for the post-war
international financial and economic framework. Mindful of the historic 1944
conference and its legacy for the discipline of international economic law,
the American Society of International Law's International Economic Law Group
(IELG) chose Bretton Woods as the venue for a landmark scholarly meeting. In
November of 2006, a diverse group of academics and practitioners gathered to
reflect on the past, present and future of international economic law. They
sought to survey and advance three particular areas of endeavour: research
and scholarship, teaching, and practice/service. This book represents an
edited collection of some of the exceptional papers presented at the
conference including contributions from Andreas Lowenfeld, Joel Trachtman,
Amelia Porges and Andrew Lang.
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'Re-righting international trade: some critical thoughts
on the contemporary trade and human rights literature' in Shan and Simons
(eds), Redefining Sovereignty: An International Debate on Sovereignty and
International Economic Law
(Hart, 2008).
The concept of state sovereignty is increasingly challenged
by a proliferation of international economic instruments and major
international economic institutions. States from both the south and north
are re-examining and debating the extent to which they should cede control
over their economic and social policies to achieve global economic
efficiency in an interdependent world. International lawyers are seriously
rethinking the subject of state sovereignty, in relation to the operation of
the main international economic institutions, namely the WTO, the World Bank
and the International Monetary Fund (IMF).
The contributions in this volume, bringing
together leading scholars from the developed and developing
worlds, take up the challenge of debating the meaning of
sovereignty and the impact of international economic law on
state sovereignty. The first part looks at the issues from
the perspectives of general international law, international
economic law and legal theory. Part two discusses the impact
of trade liberalisation on the sovereignty of both
industrialised and developing states and Part three
concentrates on the challenge to state sovereignty created
by the proliferation of investment treaties and the
significant recent growth of investment treaty based
arbitration cases. Part four focuses on the domestic and
international effects of international financial
intermediaries and markets. Part five explores the tensions
and intersections between the international regulation of
trade and investment, international human rights and state
sovereignty
'The role of the human rights movement in trade
policy-making: human rights as a trigger for social learning' (2007) 5
New Zealand Journal of Public and International Law 147-172.
This article reflects on a decade of engagement by the human rights movement in
debates about the international trading system. The author contends that this
engagement has occurred with little explicit consideration of precisely what
human rights actor and humnan rights language have to offer trade policy
debates. The question is an important one, in part because trade policy debates
have traditionally been framed in technical language, and primarily conducted
among a group of specialised experts. In addressing this question, the author
reconstructs three models of the ‘value-added’ of human rights, which he sees as
implicitly structuring much of the current ‘trade and human rights’ literature.
He sets out some advantages and limitations of each of these three models,
before offering a fourth, which sees the human rights movement as a ‘trigger’
for policy learning. Human rights actors, he argues, have begun to ask new
questions about international trading order, and in doing so have facilitated
the production of new kinds of trade policy knowledge, and the creation of new
kinds of trade expertise. To the extent that the current international trading
system is deeply structured by prevailing trade policy knowledge, the author
argues that this model captures an important and rarely recognised mechanism by
which social movements generate change in the international economic system.
'Taking uncertainty seriously: adaptive governance, alien
invasive species and the WTO' with Dr Rosie Cooney, (2007) (2007) 18(3)
European Journal of International Law 523-551.
The problem of uncertainty presents a major challenge for institutions of
international governance. In this article we draw lessons from a variety of
literatures, including ecology and environmental management, for understanding
and responding to uncertainty. From them we derive a model of ‘adaptive
governance’ as a way to respond to the extensive and pervasive uncertainty
confronting decision-makers in international institutions. Adaptive governance
accepts and responds to uncertainty through promoting learning, avoiding
irreversible interventions and impacts, encouraging constant monitoring of
outcomes, facilitating broad participation in policy-making processes,
encouraging transparency, and reflexively highlighting the limitations of the
knowledge on which policy choices are based. Here we assess the World Trade
Organization as an institution of adaptive governance, taking for our focus the
WTO’s treatment of national measures to counter the spread of invasive alien
species, an arena in which particularly challenging and persistent uncertainties
are faced. We find that while some aspects of the WTO’s operation already fit
within an adaptive governance model, in other important respects the WTO fails
to encourage (and sometimes inhibits) effective policy responses to persistent
uncertainty.
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'Reflecting on Linkage: Cognitive and Institutional Change
in the International Trading System' (2007) 70(4) Modern Law Review
pp.523-550; [reprinted in Steger, Debra P, The World Trade Organization:
Critical Perspectives on the World Economy (London: Routledge 2014)
pp.523-549]
Since the creation of the World Trade Organisation, the
international trading system has lived through a decade
of sustained and vocal public criticism. International
trade lawyers have made significant e¡orts to engage,
evaluate and respond to these critiques. This article
assesses the adequacy of these responses, focussing on
the so-called ‘trade and’ debate - or ‘trade linkage’
debate - in international trade law. While this debate
has produced valuable insights, it tends to legitimate
and reproduce precisely those aspects of the trade
regime which it purports to contest. Drawing on the
insights of economic history, an alternative mode of
scholarship is proposed - at once historical, critical,
constructivist and institutionalist - to augment the
current literature in the ‘trade and’ debate. Concrete
lines of enquiry are proposed which, if followed, would
help international trade lawyers to respond more
productively and with greater legitimacy to contemporary
public critiques of the international trading order.
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'Rethinking Trade and Human Rights' (2007) (2007) 15(2)
Tulane Journal of International and Comparative Law 335-413.
'Cross-Border Supply of Gambling Services' (Casenote)
(2006) 65 (1) Cambridge Law Journal 21.
'Reconstructing embedded liberalism: John Gerard Ruggie and
constructivist approaches to the study of the international trade regime' (2006)
9 (1) Journal of International Economic Law 81-116. [REPRINTED in Ruggie
(ed), Embedding Global Markets (Ashgate, 2008)]
In 1982, John Gerard Ruggie published a
study of the postwar international trade and monetary
regimes in which he introduced the concept of 'embedded
liberalism'. A large and growing number of international
trade scholars are finding Ruggie's concept of embedded
liberalism an appealing one, and it now occupies a
significant place on our conceptual horizon. In this
article, the author returns to Ruggie's original article
to excavate lessons which are peculiarly relevant for
current trade law scholarship. He argues that Ruggie's
account of embedded liberalism usefully serves to
destabilize common assumptions about the objectives and
normative underpinnings of the trade regime and thereby
to expand our conceptions of what a liberal trade regime
might plausibly look like. On the other hand, he
explains why he does not share the enthusiasm of those
who see in embedded liberalism an attractive normative
vision to guide WTO reform. In addition, and most
importantly, the author draws attention to the
constructivist theoretical framework of Ruggie's piece.
He suggests that Ruggie's article provides a useful
introduction to the central elements of constructivist
thinking about international institutions and shows how
attention to constructivist insights has the potential
to significantly enrich and expand our understanding of
the trade regime and of trade law.
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'Beyond formal obligations: the trade regime and the
making of political priorities' (2005) 18:3 Leiden Journal of
International Law 403-424.
The World Trade Organization is often
criticized for requiring its members to adopt policies
which can detrimentally affect poor and vulnerable
groups. Close analysis of the relevant provisions of WTO
law, however, often reveals international trade
obligations to be significantly more flexible than is
commonly suggested. The author argues, however, that, on
its own, detailed formal analysis of trade law paints an
incomplete picture. Trade law also influences political
choices by framing debates about trade policy –
determining the arguments which can be made, who can
make them, and in what forums they can be presented. The
author illustrates this argument through a focused
analysis of one controversy relating to the trade
regime, namely the ‘GATS and water’ debate, and in
particular the question of whether the General Agreement
on Trade in Services may require the ‘privatization’ of
water infrastructures.
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'GATS and regulatory autonomy: a case study of social
regulation of the water industry' (2004) 7(4) Journal of International
Economic Law 801-838, updated and reprinted in Langford and Russell
(eds) The Right to Water: Theory, Practice and Prospects (CUP,
forthcoming 2011).
In June 2002, the UN High Commissioner
for Human Rights released a report entitled
'Liberalization of trade in services and human rights'.
In this article, the author examines one of the concerns
voiced in that report, that the GATS potentially affects
the ability of governments to regulate the water
industry in the pursuit of social objectives. This claim
has been disputed by a number of other commentators.
Taking both the claim and its critics on their own
terms, he applies GATS non-discrimination articles to
typical water sector regulation, to determine whether,
and in what circumstances, such regulation potentially
violates those provisions. He argues that one should
view with some skepticism strong claims that the GATS
does not restrict social regulation of the water sector,
as they are often based on unjustifiably robust
interpretations of the protective provisions of the
GATS. At the same time, he identifies a number of
promising argumentative strategies of potential use for
those interested in protecting domestic regulatory
autonomy in the water sector.
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