1. THE EMERGENCE OF GAL
While the increasing globalization of law is a fact, there is, not surprisingly, variety of opinion about it,
especially with regard to its social and political implications. The emerging problem is that public
authorities exercise powers and functions in an area that is much less regulated by national legal
system, by charter of rights and by fully-fledged courts of law.
This is the year of Covid and together with economic trade, diffusion of diseases and infections
have been important factors of change in the legal field. Many, in the world, thought that the
WHO waited too long before declaring the pandemic, and as a consequence in April 2020 the Global
Health Assembly urged WHO to carry accurate investigations on how the organization responded to
COVID crisis. Did this mechanism of transparency and cooperation of the WHO work properly? If
something went wrong, will there be any responsibility on the top officers? Will the WHO fire them?
Another question is whether the protection of help justifies the severe limits introduced by national
governments on fundamental rights. The answer to this question differs on the basis of the different
national legal systems that are considered.
For all the magnitude of the COVID crisis, we need to be aware that this is not the most serious disease
that has hit the world in the last century. Only one century ago, at the end of the first world war, the
Spanish influenza hit millions of human beings. And it was called Spanish influenza because only the
Spanish Government, who was not involved in the war, was transparent about it: instead of keeping the
secrecy, it began to publish information about this imminent danger. The behavior of the other
countries, involved in the war, was: okay, this new disease comes from Spain. One of the first victims
of every war and every disease is transparency. All the other National Governments, in fact, in
1918/19 had a strong interest in keeping information secret because they did not want their people to
be excessively afraid of the negative consequences of the war.
Focus on the WHO. The World Health Organization is a technical body created within the UN. An
important underlying difference is that the WHO thus takes part in a global regime (UN), which is very
different from a regional one (NAFTA, EU): in that whilst the latter have an element of proximity and
affinity, the former instead admits a great variety of political systems and legal systems – and for
what’s more relevant to us, principles that are shared within the organisation are not always shared
within each MS (e.g. Iran, Turkey, India, North Korea). Such a differentiated membership is the reason
why the UN usually employs “softer” powers compared to EU and other regional regimes. And yet, even
though the membership of WHO is highly differentiated, the Kantian idea of transparency applies:
«transparency is the principle, secrecy is the exception» (this can be seen in Art.42 of the International
Health Regulation, which is a binding normative act, and says “measures shall be initiated and
completed with no delay […] and applied in a transparent and non-discriminatory way”). That’s an
international transparency: ie. considered not so much from the viewpoint of the relationship between
those who govern and those who are governed, but rather from the viewpoint of the relationships
between the countries that freely decided to join the WHO. Those Governments who join WHO must
respect certain standards of transparency among each other, irrespective of their domestic political
regime.
So, in the context of GAL, transparency is the standard criterion for assessing the behaviour of
national and global institutions. One example is the WHO communication (30/01/2020) on China’s
commendable behaviour in enacting a lockdown, isolating the virus, and informing the other countries.
Now can we be satisfied with such behaviour? As above, no. The fact that the Global Health Assembly
approved a resolution for transparency and an internal investigation is an evidence that the WHO’s
behavior was not satisfying.
***
GAL emerged as a field of study – distinct from International law – at the end of the last century, in a
sort of naïve wave of belief that all international matters could be solved through Administrative Law
(see EU, the birth of WTO, etc.). This belief was, of course, quickly curbed after 9/11.
There are three controversies concerning GAL. First: contrast between free market and
democracy. The underlying idea is that a global regulation of the market is better than a domestic
,one: indeed, if we leave public regulation entirely in the hands of national governments, these
governments could decide to have lower standards of protection (cd. race to the bottom). The big
drawback, however, is that whereas those national regulations generally correspond to national
traditions – and they may be regarded as a product of national democracy – many believe that a
weakening of democracy will ensue from globalising the regulatory power. In other words, the
assumption is that democracy is essentially national.
This is a very common argument in the US, but other countries have raised other important questions,
regarding economic rights vs. social rights. For instance, if it is true that globalization may bring
investments and technology… on the other hand there are some cons: exploitation of national
resources through the use of chemical materials, and – especially for countries such as Africa – the cd.
land grabbing. Basically, what happens if the best part of a national territory is all bought by
multinational firms? That a contrast of interests ensues. In other word, here the assumption (pioneered
by the works of T. Nagel)1 is that economic and social justice in the western world can only be achieved
‘within’ the State. 2
Local justice vs. global justice. Strictly linked to what just said, the advocates of the no justice
thesis raise also the issue of the impossibility (for the same reasons) of creating global justice. In fact,
there is no such thing as a “Global Bill of Rights”. We can talk of western values, such as those
enshrined in the TEU or in the ECHR, but nothing higher. The UN Universal Declaration (1950) is a step
in the right way, but it’s not enforceable, and it has been contested not only by some scholars but even
by some members of the UN (e.g. Saudi Arabia disagreeing on equality between men-women).
Likewise, there is not such a thing as a World Court – for the reason that the ICJ is an adjudicator only
for international disputes, plus there are entire fields where there is no global authority, no powerful
court. Europe is different, having as many as two full-fledged Courts (CJEU and ECtHR), because
Europe is the closest reality to the Kantian ideal of modern cosmopolitanism 3, but again it’s a very
limited geographical and political area.
In conclusion, what is GAL about? GAL is the field of law that addresses the issues characterising
complex public law systems. That is to say:
→ relationships between individuals and authorities, when they are influenced or governed by
normative pluralism;
→ relationships between systems of governance that claim authority over the same domain (judicial
pluralism).
1
Political philosopher, he said: “if we consider social justice, achieving the access of all to social benefits is possible
only if there are strong ties between the members of a political community, and this may happen only within a
Nation-State”.
2
There is an element of weakness: if we consider countries such as UK, Germany, France, Italy we cannot say that
solidarity only exist within nation state. For example very recently the EU gave a huge economic help to countries,
such as Italy, to face COVID impact (the MES). This is generally considered as a western value, but arguably that’s
not a global feature and there are many different views on the ‘limits of public authority’.
3
Example: a refugee from Sudan may bring successfully an action before the ECtHR vs. the decision taken by the
UK or German or Italian government to send the refugee back to his own country.
, __________________
PART 1
GENERAL PRINCIPLES OF GAL
__________________
, 2. GLOBALIZATION OF LAW
Law and globalization interact in many ways. Legal changes were necessary to achieve globalization.
Globalization, in turn, determined sometimes a de-regulation and sometimes a re-regulation. In
many cases, an increasing judicialization emerged. Globalization also had an impact on national
legal systems: attenuating the traditional distinction between private and public law, for example in
the field of environmental protection; impinging on national mechanisms of accountability.
OVERVIEW: FOUR ISSUES
→ 1. DOES GLOBALIZATION IMPLY DEREGULATION?
→ 2. AMERICANIZATION OF LAW (- Shapiro, Stewart, Mattei)
→ 3. THE DIFFERENTIATED MEMBERSHIP OF REGIONAL vs. GLOBAL REGIMES
→ 4. THE DEMOCRATIC DEFICIT IN REGIONAL AND GLOBAL INSTITUTIONS
1. GLOBALISATION AND DE-REGULATION
→ CLAIM: GLOBALIZATION IMPLIES DE-REGULATION
> CRITICISM: DISMANTLING BARRIERS IS NOT ONLY ↑(FREE MKT)… BUT ALSO ↓(NATIONAL VALUES) + ↓(LOCAL
ECONOMY)0
> CONTROVERSIAL EXAMPLES: WORK OF WOMEN AT NIGHT; MINORS LABOUR
→ COUNTERARGUMENTS: THREE EVIDENCES AGAINST THE MAIN ASSUMPTION
> N.1: EU SURELY DOESN’T LACK REGULATIONS AND DIRECTIVES (PARS CONSTRUENS)
- e.g. MEDIA & TELECOM DIRECTIVE (⇢ AGCOM); PUBLIC PROCUREMENT DIRECTIVE (⇢ ANAC)
> N.2: GLOBAL RULES REPLACING NATIONAL RULES
- SHAPIRO: WE MUST TAKE INTO ACCOUNT THE “VOLUME OF GLOBAL REGULATION” + “PENETRATION OF
THE LAW”
- VOLUME → IF WE CONSIDER ALL THE LEGAL NORMS PRODUCED, THEN GLOBAL REGULATION IS
INCREASING!
⋆ THESIS: SCHOLARS ARE BLINDED BY (↓) DOMESTIC REGULATION, WHEREAS THEY DON’T CONSIDER
GAL
⋆ BECAUSE: (≠) OFTEN NOT PUBLISHED OR NOT EASILY ACCESSIBLE, (≠) ONLY IN ENGLISH, (≠)
DIFFERENT LAWMAKING DMP
- PENETRATION → IN ANY CASE, QUALITY OVERCOMES QUANTITY
⋆ THESIS: ALTHOUGH A “NORM” IS ALWAYS “LEGAL” IN WESTERN CULTURE… (≠)CULTURES MEAN
(≠)NORMS
⋆ ∈ AFRICAN AND ASIAN SOCIETIES (e.g. ∄DISPUTE SETTLEMENT ARBITRATION IN JAPAN, BECAUSE IT
IMPLIES CONFLICT)
> N.3: GLOBALIZATION IMPLIES [GOING FROM DIPLOMACY TO] JUDICIALIZATION
- FROM DIPLOMACY (GATT CASE): IN VIOLATION OF THE RULES, THERE IS NO COURT/ARBITRATOR →
DIPLOMATIC SOLUTION
- TO JUDICIALIZATION (WTO CASE): TWO LEVELS OF JUDICIAL REVIEW → ARBITRAL PROCEDURE +
APPELLATE BODY
2. THE “AMERICANIZATION” OF THE LAW?
→ MATTEI: LEGAL GLOBALIZATION IS NOT A GLOBAL PHENOMENON, AS IT’S MAINLY AFFECTED BY ANGLO-
AMERICAN LAW SCHOOLS
> CASES: (main) DEREGULATION & ADR0 + (other) BANKING, INSURANCE, INTELLECTUAL PROPERTY…
→ SHAPIRO: IN SOME INSTANCES THIS SERVED AS A ‘MODEL’ ↔ IN OTHER CASES AS A ‘CAUTIONARY TALE’
> SOFTER STANCE: “FREQUENTLY, WE HAVE ENCOUNTERED A CERTAIN OVERLAP BETWEEN GLOBALIZATION
AND AMERICANIZATION”
> EXCEPTION: INT’L LAW GOES IN DIRECTIONS MUCH LESS WELCOMED BY US (e.g. THE HAGUE CRIMINAL
COURT)
3. THE DIFFERENTIATED MEMBERSHIP IN REGIONAL AND GLOBAL REGIMES
→ GLOBAL REGIMES: THE UNITED NATIONS [weaker requirements]
0
This is an argument which is particularly interesting for Italians because some economists argue that when Italy
was unified, it was precisely the lack of measures aiming at protecting Southern economy that led it to bear the
impossibility to remain in the national market.
0
Mattei, in particular, argues that although ‘arbitration’ may still fulfil the triadic role of the judge, yet conciliation
and mediation (which are part of ADR as well) do not play the same role. Hence – since there cannot always be an
equal basis between the parties (think, for example, of a consumer vs. a big firm) – conciliation and mediation are
instruments that perpetrate economic and social inequality.
While the increasing globalization of law is a fact, there is, not surprisingly, variety of opinion about it,
especially with regard to its social and political implications. The emerging problem is that public
authorities exercise powers and functions in an area that is much less regulated by national legal
system, by charter of rights and by fully-fledged courts of law.
This is the year of Covid and together with economic trade, diffusion of diseases and infections
have been important factors of change in the legal field. Many, in the world, thought that the
WHO waited too long before declaring the pandemic, and as a consequence in April 2020 the Global
Health Assembly urged WHO to carry accurate investigations on how the organization responded to
COVID crisis. Did this mechanism of transparency and cooperation of the WHO work properly? If
something went wrong, will there be any responsibility on the top officers? Will the WHO fire them?
Another question is whether the protection of help justifies the severe limits introduced by national
governments on fundamental rights. The answer to this question differs on the basis of the different
national legal systems that are considered.
For all the magnitude of the COVID crisis, we need to be aware that this is not the most serious disease
that has hit the world in the last century. Only one century ago, at the end of the first world war, the
Spanish influenza hit millions of human beings. And it was called Spanish influenza because only the
Spanish Government, who was not involved in the war, was transparent about it: instead of keeping the
secrecy, it began to publish information about this imminent danger. The behavior of the other
countries, involved in the war, was: okay, this new disease comes from Spain. One of the first victims
of every war and every disease is transparency. All the other National Governments, in fact, in
1918/19 had a strong interest in keeping information secret because they did not want their people to
be excessively afraid of the negative consequences of the war.
Focus on the WHO. The World Health Organization is a technical body created within the UN. An
important underlying difference is that the WHO thus takes part in a global regime (UN), which is very
different from a regional one (NAFTA, EU): in that whilst the latter have an element of proximity and
affinity, the former instead admits a great variety of political systems and legal systems – and for
what’s more relevant to us, principles that are shared within the organisation are not always shared
within each MS (e.g. Iran, Turkey, India, North Korea). Such a differentiated membership is the reason
why the UN usually employs “softer” powers compared to EU and other regional regimes. And yet, even
though the membership of WHO is highly differentiated, the Kantian idea of transparency applies:
«transparency is the principle, secrecy is the exception» (this can be seen in Art.42 of the International
Health Regulation, which is a binding normative act, and says “measures shall be initiated and
completed with no delay […] and applied in a transparent and non-discriminatory way”). That’s an
international transparency: ie. considered not so much from the viewpoint of the relationship between
those who govern and those who are governed, but rather from the viewpoint of the relationships
between the countries that freely decided to join the WHO. Those Governments who join WHO must
respect certain standards of transparency among each other, irrespective of their domestic political
regime.
So, in the context of GAL, transparency is the standard criterion for assessing the behaviour of
national and global institutions. One example is the WHO communication (30/01/2020) on China’s
commendable behaviour in enacting a lockdown, isolating the virus, and informing the other countries.
Now can we be satisfied with such behaviour? As above, no. The fact that the Global Health Assembly
approved a resolution for transparency and an internal investigation is an evidence that the WHO’s
behavior was not satisfying.
***
GAL emerged as a field of study – distinct from International law – at the end of the last century, in a
sort of naïve wave of belief that all international matters could be solved through Administrative Law
(see EU, the birth of WTO, etc.). This belief was, of course, quickly curbed after 9/11.
There are three controversies concerning GAL. First: contrast between free market and
democracy. The underlying idea is that a global regulation of the market is better than a domestic
,one: indeed, if we leave public regulation entirely in the hands of national governments, these
governments could decide to have lower standards of protection (cd. race to the bottom). The big
drawback, however, is that whereas those national regulations generally correspond to national
traditions – and they may be regarded as a product of national democracy – many believe that a
weakening of democracy will ensue from globalising the regulatory power. In other words, the
assumption is that democracy is essentially national.
This is a very common argument in the US, but other countries have raised other important questions,
regarding economic rights vs. social rights. For instance, if it is true that globalization may bring
investments and technology… on the other hand there are some cons: exploitation of national
resources through the use of chemical materials, and – especially for countries such as Africa – the cd.
land grabbing. Basically, what happens if the best part of a national territory is all bought by
multinational firms? That a contrast of interests ensues. In other word, here the assumption (pioneered
by the works of T. Nagel)1 is that economic and social justice in the western world can only be achieved
‘within’ the State. 2
Local justice vs. global justice. Strictly linked to what just said, the advocates of the no justice
thesis raise also the issue of the impossibility (for the same reasons) of creating global justice. In fact,
there is no such thing as a “Global Bill of Rights”. We can talk of western values, such as those
enshrined in the TEU or in the ECHR, but nothing higher. The UN Universal Declaration (1950) is a step
in the right way, but it’s not enforceable, and it has been contested not only by some scholars but even
by some members of the UN (e.g. Saudi Arabia disagreeing on equality between men-women).
Likewise, there is not such a thing as a World Court – for the reason that the ICJ is an adjudicator only
for international disputes, plus there are entire fields where there is no global authority, no powerful
court. Europe is different, having as many as two full-fledged Courts (CJEU and ECtHR), because
Europe is the closest reality to the Kantian ideal of modern cosmopolitanism 3, but again it’s a very
limited geographical and political area.
In conclusion, what is GAL about? GAL is the field of law that addresses the issues characterising
complex public law systems. That is to say:
→ relationships between individuals and authorities, when they are influenced or governed by
normative pluralism;
→ relationships between systems of governance that claim authority over the same domain (judicial
pluralism).
1
Political philosopher, he said: “if we consider social justice, achieving the access of all to social benefits is possible
only if there are strong ties between the members of a political community, and this may happen only within a
Nation-State”.
2
There is an element of weakness: if we consider countries such as UK, Germany, France, Italy we cannot say that
solidarity only exist within nation state. For example very recently the EU gave a huge economic help to countries,
such as Italy, to face COVID impact (the MES). This is generally considered as a western value, but arguably that’s
not a global feature and there are many different views on the ‘limits of public authority’.
3
Example: a refugee from Sudan may bring successfully an action before the ECtHR vs. the decision taken by the
UK or German or Italian government to send the refugee back to his own country.
, __________________
PART 1
GENERAL PRINCIPLES OF GAL
__________________
, 2. GLOBALIZATION OF LAW
Law and globalization interact in many ways. Legal changes were necessary to achieve globalization.
Globalization, in turn, determined sometimes a de-regulation and sometimes a re-regulation. In
many cases, an increasing judicialization emerged. Globalization also had an impact on national
legal systems: attenuating the traditional distinction between private and public law, for example in
the field of environmental protection; impinging on national mechanisms of accountability.
OVERVIEW: FOUR ISSUES
→ 1. DOES GLOBALIZATION IMPLY DEREGULATION?
→ 2. AMERICANIZATION OF LAW (- Shapiro, Stewart, Mattei)
→ 3. THE DIFFERENTIATED MEMBERSHIP OF REGIONAL vs. GLOBAL REGIMES
→ 4. THE DEMOCRATIC DEFICIT IN REGIONAL AND GLOBAL INSTITUTIONS
1. GLOBALISATION AND DE-REGULATION
→ CLAIM: GLOBALIZATION IMPLIES DE-REGULATION
> CRITICISM: DISMANTLING BARRIERS IS NOT ONLY ↑(FREE MKT)… BUT ALSO ↓(NATIONAL VALUES) + ↓(LOCAL
ECONOMY)0
> CONTROVERSIAL EXAMPLES: WORK OF WOMEN AT NIGHT; MINORS LABOUR
→ COUNTERARGUMENTS: THREE EVIDENCES AGAINST THE MAIN ASSUMPTION
> N.1: EU SURELY DOESN’T LACK REGULATIONS AND DIRECTIVES (PARS CONSTRUENS)
- e.g. MEDIA & TELECOM DIRECTIVE (⇢ AGCOM); PUBLIC PROCUREMENT DIRECTIVE (⇢ ANAC)
> N.2: GLOBAL RULES REPLACING NATIONAL RULES
- SHAPIRO: WE MUST TAKE INTO ACCOUNT THE “VOLUME OF GLOBAL REGULATION” + “PENETRATION OF
THE LAW”
- VOLUME → IF WE CONSIDER ALL THE LEGAL NORMS PRODUCED, THEN GLOBAL REGULATION IS
INCREASING!
⋆ THESIS: SCHOLARS ARE BLINDED BY (↓) DOMESTIC REGULATION, WHEREAS THEY DON’T CONSIDER
GAL
⋆ BECAUSE: (≠) OFTEN NOT PUBLISHED OR NOT EASILY ACCESSIBLE, (≠) ONLY IN ENGLISH, (≠)
DIFFERENT LAWMAKING DMP
- PENETRATION → IN ANY CASE, QUALITY OVERCOMES QUANTITY
⋆ THESIS: ALTHOUGH A “NORM” IS ALWAYS “LEGAL” IN WESTERN CULTURE… (≠)CULTURES MEAN
(≠)NORMS
⋆ ∈ AFRICAN AND ASIAN SOCIETIES (e.g. ∄DISPUTE SETTLEMENT ARBITRATION IN JAPAN, BECAUSE IT
IMPLIES CONFLICT)
> N.3: GLOBALIZATION IMPLIES [GOING FROM DIPLOMACY TO] JUDICIALIZATION
- FROM DIPLOMACY (GATT CASE): IN VIOLATION OF THE RULES, THERE IS NO COURT/ARBITRATOR →
DIPLOMATIC SOLUTION
- TO JUDICIALIZATION (WTO CASE): TWO LEVELS OF JUDICIAL REVIEW → ARBITRAL PROCEDURE +
APPELLATE BODY
2. THE “AMERICANIZATION” OF THE LAW?
→ MATTEI: LEGAL GLOBALIZATION IS NOT A GLOBAL PHENOMENON, AS IT’S MAINLY AFFECTED BY ANGLO-
AMERICAN LAW SCHOOLS
> CASES: (main) DEREGULATION & ADR0 + (other) BANKING, INSURANCE, INTELLECTUAL PROPERTY…
→ SHAPIRO: IN SOME INSTANCES THIS SERVED AS A ‘MODEL’ ↔ IN OTHER CASES AS A ‘CAUTIONARY TALE’
> SOFTER STANCE: “FREQUENTLY, WE HAVE ENCOUNTERED A CERTAIN OVERLAP BETWEEN GLOBALIZATION
AND AMERICANIZATION”
> EXCEPTION: INT’L LAW GOES IN DIRECTIONS MUCH LESS WELCOMED BY US (e.g. THE HAGUE CRIMINAL
COURT)
3. THE DIFFERENTIATED MEMBERSHIP IN REGIONAL AND GLOBAL REGIMES
→ GLOBAL REGIMES: THE UNITED NATIONS [weaker requirements]
0
This is an argument which is particularly interesting for Italians because some economists argue that when Italy
was unified, it was precisely the lack of measures aiming at protecting Southern economy that led it to bear the
impossibility to remain in the national market.
0
Mattei, in particular, argues that although ‘arbitration’ may still fulfil the triadic role of the judge, yet conciliation
and mediation (which are part of ADR as well) do not play the same role. Hence – since there cannot always be an
equal basis between the parties (think, for example, of a consumer vs. a big firm) – conciliation and mediation are
instruments that perpetrate economic and social inequality.
