Acta Juridica - Volume 2009, Issue 1, 2009
Volume 2009, Issue 1, 2009
Author Trevor A. ManuelSource: Acta Juridica 2009, pp XI –XIX (2009)More Less
I want to express my sincerest appreciation to the law schools of the University of Cape Town and of New York University for having initiated this joint venture on Global Administrative Law (GAL). I recognise that GAL, as a branch of law, is still in its nascent stage. However, as would be self-evident to all here present, this area of work is in desperate need of development and recognition. I am distinctly privileged to join with you here though, I should warn in advance, I can at best proffer a distinctly non-lawyer's perspective on the law.
Author Hugh CorderSource: Acta Juridica 2009, pp VII –IX (2009)More Less
This volume appears during an extraordinary period in the development of international governance of the world as we know it. The almost two decades preceding the Cape Town meeting at which the papers in this volume were presented, had witnessed an unprecedented acceleration of the structures and instruments of global governance, chiefly at the behest of the 'Washington consensus' and expressed through a myriad of international institutions, among them the World Trade Organisation (WTO), the International Monetary Fund and the World Bank. Building on the foundations of the 'Bretton Woods framework' established after World War II, a global financial superstructure was developed to facilitate 'free trade', effectively strengthening the power of the 'developed world'.
Accountability and the concept of (global) administrative law : definitional issues in global administrative law : part IAuthor David DyzenhausSource: Acta Juridica 2009, pp 3 –31 (2009)More Less
The alternative diagnosis of the present state of administrative law would view its disjointed and fragmented condition as a passing, interim phase. Such a view may be justified because history suggests that the conceptual vacuum created by the disintegration of the traditional model will not remain long unfilled. We may be unable to see beyond the shards of the immediate present and are thus forced to talk of 'pragmatic compromise' in order to conceal our embarrassment; but the law cannot be reduced entirely to a process of interstitial adjustment or social engineering.
The role and limits of global administrative law in the Security Council's anti-terrorism Programme : definitional issues in global administrative law : part IAuthor C.H. PowellSource: Acta Juridica 2009, pp 32 –67 (2009)More Less
On the one hand, casting global governance in administrative terms might lead to its stabilization and legitimation in ways that privilege current power-holders and reinforce the dominance of Northern and Western concepts of law and sound governance. On the other hand, it might also create a platform for critique. As the extent of global administrative government becomes obvious (and framing global regulation in traditional terms of administration and regulation exposes its character and extent more clearly than the use of vague terms such as governance), the more resistance and reform may find points of focus. Thus, from the perspective of smaller developing countries, global regulatory institutions including the WTO, IMF,World Bank, and UN Security Council might already appear to be 'administering' them at the bidding of the industrialized countries, which are generally subject to far less intrusive external regulation. Confronting these issues in administrative terms may highlight the need to devise strategies for remedying unfairness associated with such inequalities.
Globalisation, national democratic institutions and the impact of global regulatory governance on developing countries : definitional issues in global administrative law : part ISource: Acta Juridica 2009, pp 68 –89 (2009)More Less
The past five years have witnessed the launch of a new era of scholarly research and writing, known as Global Administrative Law (GAL). Its proponents have approached it primarily (though by no means exclusively) from the perspective of a sophisticated, highly developed political economy, which has played the leading role in the advancement of a system of what amounts to global governance, with special emphasis on the financial and trade sectors. Their focus has been the identification and development of regulatory mechanisms to render the exercise of discretion and authority at the supra-national level both transparent and accountable. In doing so, existing models and rules at both international and domestic levels have been relied on, again chiefly from the perspective of the developed world.
Weighing global regulatory rules and decisions in national courts : definitional issues in global administrative law : part IAuthor Benedict KingsburySource: Acta Juridica 2009, pp 90 –119 (2009)More Less
Global regulatory governance is increasingly conducted by extra-national institutions adopting administrative-style rules and regulations, or specific decisions concerning individual entities, which affect private actors or state agencies in ways that eventually come to be considered in national courts. This global regulatory governance produces unfamiliar challenges for national courts. Traditional analysis of 'international law in national courts' is germane, but does not reach many of the current generation of legal problems. This paper assesses some existing conceptual resources for dealing with these problems, and proposes a distinctive normative approach to a particular set of hard cases based on evaluation by the national court of the extent to which a particular rule or decision of the global regulatory institution satisfies criteria of 'publicness'.
Social policy choices and the international and national law of government procurement : South Africa as a case study : commercial aspects of global administrative law : part IIAuthor Christopher McCruddenSource: Acta Juridica 2009, pp 123 –167 (2009)More Less
My recently published book, Buying Social Justice, examines how governments use their purchasing power to advance conceptions of social justice and human rights, particularly equality and non-discrimination goals. Throughout the book I use the term 'linkage' to describe this particular use of procurement. Let me give just one example: in India there is currently an important domestic debate about whether to extend the system of public sector employment reservations (affirmative action) for lower castes into private sector employment, particularly given that the public sector is shrinking and the private sector is expanding. One of the options being considered by federal and state governments is whether to require such reservations through public procurement. That is, whether to require those firms receiving government contracts to adopt such reservations. This is one example of what I mean by 'linkage'. In this paper, based substantially on parts of the book, I examine the relationship between these domestic social policy choices and international rules on government procurement, with particular reference to the position in South Africa, up to mid-2006. I have not significantly updated this research, and the discussion should therefore be viewed as a case study up to that date.
'Financing development' as a field of practice, study and innovation : commercial aspects of global administrative law : part IIAuthor Kevin E. DavisSource: Acta Juridica 2009, pp 168 –184 (2009)More Less
There is ongoing debate about the role foreign capital plays in developing countries efforts to reduce poverty and promote development. In theory poor countries should almost always be able to put foreign capital to good use. In practice though, much depends on the terms on which the capital is provided. This holds true whether the transaction in question involves a loan from the International Monetary Fund (IMF) or bilateral aid or project financing. In each case the great challenge is to find terms that are sufficiently appealing to induce financiers to part with their funds yet still compatible with the social and economic needs of inhabitants of developing countries. In 2002 fifty world leaders acknowledged these interrelated challenges and, as part of the Monterrey Consensus, endorsed the statement that '[A] holistic approach to the interconnected national, international and systemic challenges of financing for development ... in all parts of the globe is essential.'
Competition law and globalization : uniformity or convergence, networking or state sovereignty? : commercial aspects of global administrative law : part IIAuthor D.M. DavisSource: Acta Juridica 2009, pp 185 –185 (2009)More Less
Two significant stories have dominated antitrust regulation since World War II, more particularly over the past two decades. Whereas prior to 1950 antitrust law was essentially the province of the United States and its predecessor, Canada, more than one hundred countries have since introduced relevant legislation.
Costing, comparing and competing : the World Bank's Doing Business Survey and the bench-marking of labour regulation : commercial aspects of global administrative law : part IISource: Acta Juridica 2009, pp 204 –234 (2009)More Less
The World Bank's Doing Business (DB) Survey endeavours to benchmark regulation on a variety of topics that may affect the costs of doing business in a country, including 'starting a business', 'dealing with licences', 'getting credit', 'paying taxes', 'enforcing contracts' as well as 'employing workers'. The measurement of labour regulation, which is the focus of this paper, is an important component of the survey. Indeed one of the studies that provided the intellectual inspiration for the DB Survey is exclusively concerned with labour market regulation.
Fostering dynamic innovation, development and trade : intellectual property as a case study in global administrative law : intellectual property and GMO issues in global administrative law : part IIIAuthor Rochelle Cooper DreyfussSource: Acta Juridica 2009, pp 237 –282 (2009)More Less
The World Trade Organisation (WTO) is currently suffering from a lawmaking deficit. Reliance on consensus-based decision-making has stymied the political process. At the same time, lawmaking through the Understanding on Dispute Settlement (DSU) suffers from concerns about the legitimacy of law created through 'adjudication' rather than party agreement. Less well understood are the special problems that this deficit poses for TRIPS, the intellectual property portion of the WTO Agreement. Admittedly, a great deal of attention has focused on the question of making essential medicines available in the developing world. However, that issue barely scratches the surface of the problems that the creative community is facing.
Accommodating user innovation in the international intellectual property regime : a global administrative law : intellectual property and GMO issues in global administrative law : part IIIAuthor Katherine J. StrandburgSource: Acta Juridica 2009, pp 283 –319 (2009)More Less
Since the negotiation of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) in 1994, the innovative landscape has undergone dramatic changes due to technological advances in fields such as biotechnology, nanotechnology, and digital communications and computation. Notably, the negotiation of TRIPS coincided almost exactly with the rise in importance of the Internet following the invention of the World Wide Web and the introduction of the Mosaic web browser in the early 1990s. These technological changes have spawned major social changes, which are increasingly felt not only in developed countries, but also throughout the world. The resulting changes in the innovative landscape, especially as instantiated in the complex technologies of the information technology industry, have given rise to controversy about the proper contours of intellectual property protection and to upheaval in the political economy of intellectual property lawmaking. This upheaval is reflected, for example, in the split between the pharmaceutical sector and many information technology companies in their positions on patent reform in the United States.
GMO trade regulation and developing countries : intellectual property and GMO issues in global administrative law : part IIIAuthor Richard B. StewartSource: Acta Juridica 2009, pp 320 –380 (2009)More Less
Commercial adoption of genetically modified (GM) foods and crops (also called 'genetically modified organisms' or 'GMOs') created through recent innovations in agricultural biotechnology has triggered widespread controversy over the environmental and economic benefits and risks of GMOs as well as a wider range of social, cultural, and ethical values.
A Rose is a Rose but is an 'Acacia' an 'Acacia'? Global administrative law in action : intellectual property and GMO issues in global administrative law : part IIISource: Acta Juridica 2009, pp 381 –402 (2009)More Less
At the Plenary Session of the XVII International Botanical Congress ('IBC'), held in Vienna in 2005, the IBC operating under the auspices of the International Association for Plant Taxonomy ('IAPT') decided to re-assign the name Acacia, a tree species that occurs throughout the world, to three segregate genera. According to the new classification suggested by modern taxonomic evidence, the name Acacia henceforth would be retained for the sub-genus of Acacia located in Australia where it would be used mainly for Australian wattles.