Chapter 3 examines the various regulatory activities in which transnational regulatory regimes commonly engage. These include standard setting, dispute resolution, technical assistance, humanitarian aid, and transnational deliberation. It also explores how each of these particular activities can be devoted to one of two distinct regulatory ‘function’. One such function looks to promote ‘efficacy’ – the regime’s ability to achieve its desired regulatory outcomes. The other looks to promote ‘interest balancing’ – balancing the competing interests of different stakeholders in a way that nevertheless retains the allegiance of all stakeholders despite their disagreements. A regime’s choice as to whether to focus on efficacy or on interest balancing effects how its regulatory activities are structured and implemented. In addition, a regime’s regulatory function can be a matter of contestation, which gives rise to issues of what this volume calls ‘operational legitimacy’ – the degree to which the regime’s stakeholders support the particular regulatory function that regime seeks to promote.

Chapter 1 examines the conceptual and methodological foundations that underlie this volume. Conceptually, it delineates transnational ‘law’ as consisting simply of that collection of transnational institutions and practices with which persons with legal training are increasingly engaged. The purpose of this volume, correspondingly, is to facilitate such engagement: to help the legal actor better understand what to look for and what the implications are of what she finds when she encounters such institutions and practices. Its methodology involves identifying the various ‘facets’ of transnational institutions and practices that are of most interest to persons working from the perspective of law (e.g., regulatory activities, governance structures); exploring how different regulatory regimes structure these facets in different ways so as to serve different regulatory purposes; and investigating how a regime’s structuring of that facet affects what the other facets of that regime can and cannot do effectively and, beyond that, the reach and shape of the regime’s overall legitimacy.

Chapter 4 examines the ways that transnational regulatory regimes are organized and governed. It also explores how the tension explored in Chapter 3 between a functional concern for efficacy and a functional concern for interest balancing finds resonance in a tension between a regime adopting a more exclusivist form of governance called the ‘club model’ or a more inclusive form of governance the chapter refers to as the ‘pluralist model’ – with the pluralist model being further divided into a more hierarchical form called the multi-stakeholder initiative, and a more decentralized form called networks. All have their own set of comparative advantages and disadvantages. Also explored is how the interaction between these two models of governance, on the one hand, and the two kinds of regulatory functions explored in Chapter 3, on the other, can give rise to issues of ‘operational legitimacy’. Finally, Chapter 4 investigates efforts to constrain possible abuses of power by transnational governance regimes, much like public law works to constrain possible abused of power by domestic governments. These efforts are generally referred to as ‘global administrative law’.

Chapter 5 examines both the enforcement of transnational regulation and the ways it is resisted. Its analysis revolves around a particular model for regulatory enforcement developed by John Braithwaite and Ian Ayers called the ‘regulatory pyramid’. This involves first focusing on cooperative enforcement, moving on to the employment of negative incentives when these cooperative efforts fail, and culminating in punitive enforcement involving social and/or economic incapacitation when negative incentives fail. Transnational regulatory regimes frequently evince a similar structuring of their enforcement activities, which generally start with negotiation and persuasion, move up to incentive-based enforcement techniques such as reputational enforcement, and sometime moving even further to incapacitating enforcement techniques such as expulsion or blacklisting. How a regime structures its ‘regulatory pyramid’ can have significant impact on its organizational legitimacy. Chapter 5 also explores the techniques regulatory subjects use resist regulatory obligations – including indifference, ‘creative compliance’, and overt challenge.

Transnational regulatory regimes are often not exclusive within their regulatory domains. The regulatory reach of different regimes often overlap, potentially subjecting a particular actor to contradicting regulatory demands – a condition called ‘legal pluralism’. There are different kinds of pluralist overlap. We can distinguish between internal pluralism, in which regulatory overlap can be resolved juridically, and external pluralism, in which it has to be resolved politically; we can also distinguish between symmetrical pluralism, involving a regulatory overlap between two regimes operating at the same geographical scale, and asymmetrical pluralism, in which the overlap involves regimes operating at different geographical scales. And we can distinguish between cooperative pluralism, where the overlapping regimes cooperate in addressing the overlap, and non-cooperative pluralism, where they compete for dominance. Transnational regulatory environments have developed a number of ways of responding to these different kinds of pluralist overlaps – such as using a conflicts-of-law approach to handle issues of internal pluralism.

In order to gain allegiance, a transnational regulatory regime must be able to demonstrate its ‘regulatory legitimacy’ – it must persuade its members, and sometimes the global community in general, that it is addressing a true regulatory need. Most commonly, such regimes will appeal to one or more of the following conditions as being the basis for its regulatory legitimacy: transnational interdependency; global convergencies that are resulting in common regulatory needs that are more efficiently addressed at the transnational level; cosmopolitanism; the distinct concerns of particular transnational regional or professional populations; and the capacity of transnational law to facilitate emancipation from oppressive domestic regulatory structures. Establishing these various ‘bases of regulatory legitimacy’ often involve making empirical claims that can be subject to considerable contestation. As examined later in this volume, all this implicates the particular kinds of regulatory activities (see Chapter 3) and governance structures (see Chapter 4) the regime can support.

Although transnational law is often characterized as ‘non-state law’, states actually play a significant role in the construction and operation of much transnational regulation. Chapter 6 examines the most common ways that states do this. These include: by giving transnational effect to their own domestic laws – what is known as ‘extraterritoriality’; by imposing economic sanctions against regimes that are not comporting with transnational legal norms; by adjudicating transnational regulatory disputes in their domestic courts – i.e., ‘transnational litigation’; and by collaborating in the formation of intergovernmental networks that shape and sometimes even create transnational regulatory regimes. Each of these techniques has its own set of comparative advantages and disadvantages insofar as both their efficacy and their legitimacy implications.

Chapter 8 explores how transnationalization is affecting legal practice. First, it is creating new kinds of commercial law firm, called ‘global law firms’. Global firms are comprised of a geographically and culturally disperse collection of local branch offices, which results in distinctive organizational issues. It is also results in a more complex form of commercial practice, demanding ever greater forms of specialization: this is particularly evident in the revival of the role of in-house counsel, and in new, emerging kinds of legal practice found in the Global South. Globalization is also producing new, global forms of legal advocacy, which pose their own distinct sets of practical and normative issues and challenges depending on the nature of the issue being advanced (such as whether the advocacy is in response to a particular condition or to a particular event; or whether it is seeking to address primarily local injustices or more globally prevalent injustices). Transnational legal practice also gives rise to new issues regarding professional ethics, with different domestic legal regimes addressing these issues in sometimes contradictory ways.

Prologue

Beijing Consensus was a term initially coined by Joshua Cooper Ramo in 2004, as a superior, and distinctly Asian, developmental model. Ramo's claim of a “Beijing Consensus” triggered much academic interest and resistance in the West, as some questioned whether the developmental policies Ramo's model prescribed accurately described China's path to economic development. In 2007, Randall Peerenboom, in a book titled China Modernizes: Threat to the West or Model for the Rest?, advanced what he termed an “East Asian Model,” which prioritizes economic reforms over liberal political reforms and is characterized by a distinctively gradualist approach to development. A couple years later, Dani Rodrik advanced a similar model – “New Development Economics.” Similar to the East Asian Model, it emphasizes pragmatism and experimentation and considers China's post-Mao development as its principal exemplar.

In this chapter, Pessimo (Dowdle) and Optimo (Prado) debate the merits and pitfalls of each of these instantiations of the idea of a consensus. We conclude – somewhat surprisingly – that it is in the discussion they generate, rather than in their substantive prescriptions, that the real value of these models lies.

On Joshua Ramo's Original Idea of a “Beijing Consensus”

Joshua Ramo introduced the term Beijing Consensus as a particular developmental strategy that was superior to the then still popular, but increasingly discredited, “Washington Consensus.” According to Ramo, the Beijing Consensus consists of “three theorems about how to organize the place of a developing country in the world.” We examine each theorem in turn.

On Ramo's First Theorem

“The first theorem repositions the value of innovation. Rather than the ‘old-physics’ argument that developing countries must start development with trailing-edge technology (copper wires), it insists that on [sic] the necessity of bleeding-edge innovation (fiber optic) to create change that moves faster than the problems change creates. In physics terms, it is about using innovation to reduce the friction losses of reform.”

Pessimo on Development as “Bleeding-Edge” Innovation

To me, this is just a buzzword salad. What does it mean to “create change that moves faster than the problems change creates”? What problems do copper wires cause that immediate transition to fiber optics outruns?