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Introduction
The previous
three chapters have traced the development of over-arching global
regulation and legislation from the specialized perspectives of
economics, cultural life and taxation. This chapter will step back
to take a broader view of the law, but will reach the same conclusion:
that law, which once was the prerogative of the human social group,
has been corralled by the nation state, but will now, through globalization,
once again become the common property of human beings.
At least
for the corporate sector, but also in some personal areas of life
such as investment, sport and property rights, the footprint of
regional or global legislation has already become greater than that
of domestic (national) legislation.
As a generalization,
though, it's possible to say that codification of law at a global
level has marched ahead of implementation. It's not that difficult
for a global body such as the International
Olympic Committee to draw up a set of rules which are then accepted
by all its member nations (meaning, in effect, everybody). Much
harder is to create an international apparatus for dealing with
disputes over their application, or with people or firms who transgress
against the rules (a dispute between the regulator and the regulated).
Usually,
the pattern has been that national courts or arbitrators
have sorted out disputes occurring on their own territory, by incorporating
wider law into national law, or by referencing it. But given the
increasingly international nature of much human behaviour, commercial
or otherwise, there is a trend for dispute resolution to migrate
to international fora. Evidently, once both the setting up of rules
and the resolution of disputes are both international, the nation
state has been excluded from the regulatory process, although it
may well find itself in the sometimes uncomfortable position of
having to implement the findings of an international forum in respect
of its own citizens or firms.
This chapter
will examine the development of law from its roots based in the
human kin group, through its takeover by nation states, to the re-appearance
of 'grass roots' judicial procedures at an international level through
globalized institutions.
The
Origins Of Law
It is
probably uncontentious by now to assert that a code of behaviour
evolved during the development of the human
social group, to enable individuals
to function with each other and as part of the group. Since it is
hard to imagine that any very sophisticated interaction could have
taken place in the group until the emergence of language,
it is perhaps also reasonable to date the availability of a set
of 'groupish' moral templates to the same
period. Little change can have taken place to the genetic inheritance
of modern man since then, so we can assert that the genetically-embedded
moral structure of humans is at least 250,000 years old.
Many commentators
locate the emergence of complex social interaction in the hunter-gatherer
group, comprised of men (in most cases) who separated out from the
undifferentiated, mixed kin-group, and needed to develop sophisticated
techniques for co-operation and communication. This may explain
why it was through 'The Fathers', or the
male elders of the tribe, that law emerged as the basis of all conduct,
moral or otherwise. The feminine emancipation of the last 150 years
has shifted the law into the hands of women as equal partners alongside
men, but the masculine origins of the law are hard to dispute.
De
Jouvenel 1 describes the omnipotent
legal powers exercised as of right by individual male heads of tribes
(families, kin-groups) in Ancient Rome, and jointly by male councils,
quoting Maine 2
in support of this depiction. It is difficult to doubt that
the supremacy of male members of early tribes (groups) stems directly
from the role of 'the Fathers' in early human groups, however this
is thought to have originated.
For rules
of conduct to be more than pious aspirations on the part of the
more reflective members of a group, there also needs to be a propensity
to accept such rules among all group members, and it is clear that
this propensity did develop alongside the rules themselves.
Inside
the human group there is very strong pressure for conformity - what
is loosely referred to, often pejoratively, as the 'herd' instinct.
It's obvious that the group would seek to impose conformity on its
members in many respects (although dissent is adaptive when it comes
to competition between groups, because it allows for greater flexibility
of group behaviour). It's also obvious that one of the best ways
of ensuring conformity (after mimetics) is by reference to an objective
body of rules (or morals or laws) which all members of the group
accept. It's not difficult to see how 'the law' would have evolved
as a mechanism for ensuring group solidarity, initially through
'The Fathers' and later on as a separate body of rules independent
of any particular sub-group, although there would always be a sub-group
(or groups) with devolved responsibility for maintenance and enforcement
of the rules. Today, the judiciary and the police are those groups;
in the hunter-gatherer group, it was the Fathers, and perhaps even
they had 'heavies' at their disposal (in return for extra meat?).
Peter
Kropotkin 3 emphasizes the long continuity
of village- or community-based law in Europe and Russia, throughout
history and up to the 15th century. Such law is very centered on
individual relationships within the
group, on solving problems in the group, on assessing 'right' and
'wrong' as between people and dealing with compensation. However,
at all times the individual is treated as being part of the group,
and the actions of an individual are treated as actions of the group.
'Every
quarrel arising between two individuals was treated as a communal
affair - even the offensive words that might have been uttered during
a quarrel being considered as an offence to the community and its
ancestors. . . . The judicial procedure was imbued with the same
spirit. Every dispute was brought first before mediators or arbiters,
and it mostly ended with them, the arbiters playing a very important
part in barbarian society. But if the case was too grave to be settled
in this way, it came before the 'folkmote', often in a jury setting.'
Kropotkin
remarks upon the persistence of this community-based customary law
even after villages had come under the sway of warlords. 'The
moral authority of the commune was so great that even at a much
later epoch, when the village communities fell into submission to
the feudal lord, they maintained their judicial powers.'
Kropotkin
also notes that the death penalty, indeed all penalties, were scarcely
available under customary law. If a person was unable to pay compensation,
even for killing, he would normally join the family or group of
the injured party.
It is
not right however to suppose that members of primitive tribal societies
obeyed their folk-laws purely out of a sense of moral obligation
to the group. There were sanctions which could be applied if they
did not, ranging from expulsion (a serious and possibly fatal punishment)
to violent retribution from relatives of injured individuals. Evans-Pritchard
4 makes this clear: 'What chiefly makes
people pay compensation is fear that the injured man and his kin
may take to violence . . . also the chances of a man obtaining redress
for an injury are less the further removed he is from the man who
has injured him, since the opportunity for violence and the effectiveness
of kinship backing lessen the wider the distance between the principals.'
Richard
Alexander 5 says that rules of morality
and law seem to be designed to enable societies to be sufficiently
united to deter their enemies rather than just to allow people to
live in harmony within societies. But that is surely too limiting:
a group has a competitive advantage if it has a set of agreed-upon
rules, but that doesn't prevent the rules from achieving other goals
- division of labour between men and women, efficient hunting and
so on.
De Jouvenel
contrasts 'law', or at least the process of 'legislation', coming
at a relatively late stage of human societal development, with the
body of customs and moral precepts, seen as being fixed from time
immemorial. He quotes Westermarck 6
:'The Rejangs of Sumatra do not acknowledge a right in the chiefs
to constitute what laws they think proper, or to repeal or alter
their ancient usages, of which they are extremely tenacious and
jealous. There is no word in their language which signifies law.'
During
the Middle Ages and the Renaissance, church law took on much of
the ethical burden of society; but customary law continued to exist
in parallel with church law, and with commercial law as expressed
by the guilds. All were equally distant from the emerging State,
whose legal competence at that stage was limited to some aspects
of what we would today call criminal law. Churches had their own
courts (and still do, although in places other than the Vatican
and in Islamic countries they nowadays have extremely limited powers).
Customary law at village and town level was administered by local
officials and was during that period no concern of central government.
International
Legal Organizations
The process
by which the State took over between approximately 1600 and 1900
the legal systems which the traders, the church and the commune
had developed has been described in previous chapters. Ordinary
citizens had no say and no choice in the development of all-encompassing
state law - which still continues - but international business-people
have more options.
As has
been demonstrated in earlier chapters, very many international or
global organizations are coming into existence which offer rule-making
and often quasi-judicial services to their sectors. Many of these
are related to economics, broadly defined, but
some deal with the rights, aspirations and property of individuals.
Such international
organizations are growing up largely unaffected by national legislative
processes, although once a global body of regulation exists it is
often adopted into national law if no parallel global judicial process
has emerged. The Court of Arbitration for
Sport (described below) is an example of a global judicial forum
which is completely independent of national legislatures; anti-money
laundering law, supervised by the OECD, the
FATF and the IMF, is an
example of a body of law which has been originated internationally
but has been copied into national legislatures because no suitable
international judicial forum exists.
The Internet
already provides many examples of the growth of free-standing moral
and legal codes, particularly in Virtual Internet
Communities (VICs). These codes usually have a startling resemblance
to their 'real world' equivalents. VICs and their regulatory codes
are described in more detail in Chapter 7 and Appendix 3. In a graphic
example of the power of such codes, and their eventual interaction
with 'real world' regulation, Journalist Peter Ludlow was kicked
out of Alphaville in The Sims Online (a virtual
reality community) in 2004 because he criticized lax moral standards
in the community; this set off a wide debate in the US on 'free
speech' in virtual reality worlds, and the applicability of the
First Amendment.
From
a business perspective, arbitration is perceived
as a very satisfactory alternative to conventional national court
processes. The
more international is a dispute, the more likely it is to be resolved
by arbitrators rather than the courts. The reasons for this are
to be found in the cost and length of court proceedings, the lack
of expert judges in national judiciaries, and the national character
of court judgements. For an international business, there is very
little point in obtaining a judgement in one country if it has to
apply in 30 countries. National legal fraternities are so jealously
obsessed with preserving their own territories and privileges that
they have done a really bad job of providing the tools needed by
international business.
The
organizations briefly described below are given equivalent and in
most cases fuller treatment in Appendix One.
The
International Court of Arbitration
There
are a number of arbitration forums world-wide, but the most prominent
is that of the International Chamber of Commerce, founded in 1923,
four years after the founding of the ICC itself. Since 1999, the
Court has received new cases at a rate of more than 500 a year.
International commercial arbitration has a long modern history,
and was widely used in the 19th century. It will come as a surprise
to many, perhaps, that there is for instance a commercial arbitration
tribunal in Moscow which originated in the 19th century, was suspended
during Bolshevism (but never abolished) and is now again active
in resolving international disputes. As with all other international
arbitration fora, its writ is accepted by businesses anywhere which
choose to use its arbitration to resolve disputes. Imagine, in contrast,
trying to use the Russian State commercial courts (confusingly but
tellingly labelled 'Arbitrazh' courts) to resolve an international
dispute.
The Association for International
Arbitration (AIA)
AIA works towards promotion of Alternative Dispute Resolution in
general and Arbitration in particular, as a means of dispute resolution
and strives to bring together the global community in this field,
be it as professionals in the form of Judges, Lawyers, Arbitrators,
Mediators or as Academicians as well Research Scholars and Students.
With this unique blend of people, it is AIA's endeavor to inculcate
an interest in ADR, not only in the professional sphere but also
create an awareness and interest in it among budding professionals
in law schools/universities all around the globe.
The
International Law Commission
The
International Law Commission (ILC) was established by the General
Assembly of the United Nations in 1948 with the purpose of codifying
and promoting international law, following up on previous, more
or less unsuccessful attempts to do the same thing originating in
the 18th century.
The
work of the ILC has in fact been very productive. Among its progeny
are:
The
Nürnberg Principles
The Law of the Sea
The Vienna Convention on the Law of Treaties
The Vienna Convention on Succession of States in respect of Treaties
The Vienna Convention on Diplomatic Relations
Convention on the Reduction of Statelessness
The Draft Articles on the Responsibility of States for Internationally
Wrongful Acts; and
The International Criminal Court (see below)
The
United Nations Commission on International Trade Law (UNCITRAL)
UNCITRAL
was established by the United Nations General Assembly in 1966 and
has a mandate to further the progressive
harmonization and modernization of the law of international trade
by preparing and promoting the use and adoption of legislative and
non-legislative instruments in a number of key areas of commercial
law.
The
areas tackled so far include dispute resolution, international contract
practices, transport, insolvency, electronic commerce, international
payments, secured transactions, procurement and sale of goods. Some
other topics have been left to specialized international organizations
to take the initiative, such as intellectual property by the World
Intellectual Property Organization (WIPO).
Members are selected from among States Members of the United Nations,
and their number has been increased several times, most recently
to 60 in 2005. Texts agreed by UNCITRAL working groups are adopted
by consensus, and presented to the UN General Assembly, after which
individual member states are called upon to ratify the resulting
instruments or conventions.
UNCITRAL has prepared a number of international conventions, model
laws and legislative recommendations across a wide range of trade
and financial sectors. The model laws and legislative recommendations
are offered to member states, and many have indeed adopted them,
often with little or no alteration.
The
World Trade Organization
The
WTO's Dispute Settlement Body deals with disputes between WTO member
countries (now, 150 of them) with regard to any of the Agreements
they have entered into. These are described at length in Chapter
6, but broadly may be said to encompass all aspects of international
trade in goods and many services, plus intellectual property disputes
arising under TRIPS (The Agreement on Trade Related Aspects of Intellectual
Property Rights).
The
WTO's rules are enforced by the members themselves under agreed
procedures that they negotiated, including the possibility of trade
sanctions. But those sanctions are imposed by member countries,
and authorized by the membership as a whole.
The
Dispute Settlement Body has two subsidiaries: the dispute settlement
“panels” of experts appointed to adjudicate on unresolved
disputes, and the Appellate Body that deals with appeals.
The
International Court of Justice
The
International Court of Justice (ICJ) is the principal judicial organ
of the United Nations; it was described in Chapter 2, and concerns
itself mostly with disputes between member states of the UN.
The
International Telecommunications Union
Other
than its role in radio frequency dispute resolution, the ITU (described
in more depth in Chapter 1) has not acquired much responsibility
for telecommunications dispute resolution, which is performed by
a variety of organizations, including WIPO, Arbitration Courts in
London, Stockholm and other places, the ICC, and the WTO, not of
course forgetting national court systems. However the ITU does devote
a great deal of attention to dispute resolution issues through its
publications and events. It may be expected that as time goes by
the ITU will acquire an expanded role in dispute resolution.
The
European Court of Justice
The
ECJ is the dispute resolution forum of the European Union. Litigants
may include governments, the European Commission or one of its agencies,
private companies or individuals. Litigants do not necessarily have
to be from EU Member States, but the ECJ accepts only cases referring
to EU Treaties (Rome, Nice and Maastricht) and community legislation.
Given
the importance of the EU's 27 member states on the world stage,
the ECJ has to be counted as a global organization in terms of the
impact of its judgements. Certainly it is a supranational organization;
even in direct taxation, one of the 'red lines'
which EU competences are supposedly not allowed to cross, recent
'level playing field' judgements of the ECJ over dividend taxation
and corporation tax have started to put severe limits to the freedom
of action of national tax authorities.
CARICOM
While
CARICOM itself (the Caribbean Community) lags far behind the EU
in terms both of its own development and its international impact,
the Caribbean Court of Justice came into being
in 2005, and apart from acting as a forum for the resolution of
CARICOM disputes, has taken over the powers of the Privy Council
in London as a court of final appeal for many Caribbean jurisdictions.
The CCJ is based in Port of Spain, Trinidad and Tobago.
The
International Criminal Court
The
ICC was established in 2002 as a permanent tribunal to prosecute
individuals for genocide, crimes against humanity, war crimes, and
the crime of aggression. The ICC is designed to complement existing
national judicial systems: the Court can only exercise its jurisdiction
when national courts are unwilling or unable to investigate or prosecute
such crimes, thus being a "court of last resort". Primary
responsibility to exercise jurisdiction over alleged criminals is
therefore left to individual states. The court can only prosecute
crimes that were committed on or after 1 July 2002, the date its
founding treaty, the Rome Statute of the International Criminal
Court, entered into force.
The
total number of member states of the court is currently 104, and
a further 40 countries have signed but not yet ratified the court.
The official seat of the ICC is in The Hague, Netherlands, but the
proceedings may take place anywhere.
The
ICC is functionally independent of the United Nations in terms of
both personnel and financing, although some meetings of the ICC
governing body, the Assembly of States Parties to the Rome Statute,
are held at the UN. There is a "relationship agreement"
between the ICC and the UN that governs how the two institutions
regard each other legally.
The
Financial Markets Association
ACI
- The Financial Markets Association, was founded in France in 1955
following an agreement between foreign exchange dealers in Paris
and London. ACI has the largest membership of any of the international
associations in the wholesale financial markets. The scope of the
ACI's Model Code is wide ranging, encompassing the over-the-counter
markets and instruments traded by international banks.
Where
the counterparties of a transaction are unable to resolve a dispute,
which has arisen between them, the ACI Committee for Professionalism
provides an Expert Determination Service in order to facilitate
its resolution. Market participants are encouraged to avail themselves
of this service in accordance with ACI Rules for Over-the-Counter
Financial Instruments Disputes Resolution. The official language
of The Model Code is English.
Federation
Internationale des Football Associations
FIFA
was described in Chapter 2. Key FIFA regulations are those for the
status and transfer of players, for players' agents, and for match
agents. There is a Dispute Resolution Chamber. FIFA has considerable
legislative and judicial power which in many respects over-rules
or has spawned national legislation.
The
Court of Arbitration for Sport
The
Court of Arbitration for Sport came into existence in the 1980s.
At the beginning of the 1980s, the regular increase in the number
of international sports-related disputes and the absence of any
independent authority specialising in sports-related problems and
authorised to pronounce binding decisions led the top sports organisations
to reflect on the question of sports dispute resolution.
In
1983, the Internation Olympic Committee officially
ratified the statutes of the CAS, which came into force on 30 June
1984. The CAS Statute of 1984 was accompanied by a set of procedural
Regulations. Both were modified slightly in 1990. In 1991, the CAS
published a Guide to arbitration which included several model arbitration
clauses. Among these was one for inclusion in the statutes or regulations
of sports federations or clubs. This clause read as follows: "Any
dispute arising from the present Statutes and Regulations of the
... Federation which cannot be settled amicably shall be settled
finally by a tribunal composed in accordance with the Statute and
Regulations of the Court of Arbitration for Sport to the exclusion
of any recourse to the ordinary courts. (Author's italics.)"
All
Olympic International Federations but one and many National Olympic
Committees have recognised the jurisdiction of the CAS and included
in their statutes an arbitration clause referring disputes to the
CAS.
The
International Bar Association
The IBA was formed in 1947 and comprises 30,000 individual lawyers
and over 195 Bar Associations and Law Societies. It aims to influence
the development of international law reform and shape the future
of the legal profession. Through its various sections and committees,
the IBA enables an interchange of information and views among its
members as to laws, practices and professional responsibilities
relating to the practice of business law throughout the world. It
promotes the independence of the judiciary and the right of lawyers
to practise their profession without interference, and supports
human rights for lawyers worldwide through its Human Rights Institute.
The IBA's Standing Committee on Human Rights and the Just Rule of
Law was formed in the 1980s. In 1992 an Action Plan was adopted
to establish a Trial Observer Corps and investigate cases where
judges and lawyers or the independence of Bar Associations was threatened.
In 1995, the formation of the Human Rights Institute expanded this
work and gave the opportunity for member organisations and individual
members to actively contribute.
The
Council of the International Bar Association passed a Resolution
on the Rule of Law in Prague in 2005. The Governments who have so
far expressed their support for the resolution are Austria, Bermuda,
Cayman Islands, Cyprus, the Czech Republic, France, Germany, Luxembourg,
Malawi, the Philippines and Romania.
The
International Law Association
The
ILA was founded in Brussels in 1873 and currently has 3,700 members.
Its objectives, under its Constitution, are "the study, clarification
and development of international law, both public and private, and
the furtherance of international understanding and respect for international
law". The ILA has consultative status, as an international
non-governmental organisation, with a number of the United Nations
specialised agencies.
The
ILA's International Committees are established to undertake research
and to prepare reports on carefully selected areas of international
law. The reports take various forms: a re-statement of the law;
a draft treaty or convention; an elaboration of a code or rules
or principles of international law; or a review of recent developments
of law or practice.
The
Union
Internationale des Avocats
The UIA, created in 1927, is an association open to all lawyers
of the world, made up of both general and specialist practitioners,
counting more than 200 bar associations, organisations or federations
(representing nearly two million lawyers) as well as several thousand
individual members from over 110 countries.
Since it was created, the UIA has adopted resolutions of a general
nature, as well as specific charters dealing with matters linked
to the legal profession. The UIA says that these charters are implemented
worldwide thanks to the support of active UIA members present in
all continents, and in particular thanks to the UIA's actions within
the framework of international organisations.
Summary
It
is apparent from this chapter and preceding ones that in many spheres
of human life the footprint of 'national' law is already small and
is shrinking rapidly. This is perhaps a surprising conclusion, given
the enthusiasm with which national legislatures churn out ever-growing
volumes of regulation; but it deals with a limited range of fields,
and even in some of those does little more than implement or copy
global regulation, as for instance in environmental law, intellectual
property and trade law. Even in fields which seem almost exclusively
national in scope, such as criminal law or planning (zoning) law,
there are growing international pressures for harmonization, and
these will only increase as the cultural barriers between nations
break down (see Chapter Two). In particular, to the considerable
extent that national legal structures reflect linguistic differences,
their differences will come to look like obstacles once language
barriers disappear (in the 2020s).
Footnotes:
1.
De Jouvenel, B (1948) On Power, tr J F Huntingdon, Hutchinson,
London (originally published in French in 1945)
2.
Maine (1861) Ancient Law: Its Connection With The Early History
Of Society And Its Relation To Modern Ideas, London
3.
Kropotkin, P (1902) Mutual Aid, Heinemann, London
4.
Evans-Pritchard, E E (1940) The Nuer; A Description Of The Modes
Of Livelihood And Political Institutions Of A Nilotic People,
OUP
5.
Alexander, Richard (1987) The Biology of Moral Systems,
Aldine De Gruyter, New York
6.
Westermarck, (1906) The Origin and Development of the Moral
Ideas, Vol I p 162, Macmillan, London
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