BOOK ONE: 2015 - GLOBALIZATION

Chapter Four: The Globalization Of Law And Dispute Resolution

III. 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 judgment 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 as 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, 160 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 28 member states on the world stage, the ECJ has to be counted as a global organization in terms of the impact of its judgments. Certainly it is a supranational organization; even in direct taxation, one of the 'red lines' which EU competencies 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 123, notably excluding the USA, and a further 30 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 3,500 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).