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Jean-Marc Sauvé Conventions

Global law is not a new normative, structured, hierarchized legal order akin to Kelsen’s pyramid, but rather a new way of using law. If it constitutes a strong challenge to legal dogma, it is because global law is the product of transnational actors such as corporations, professional organisations and NGOs. Thus it often works through channels that escape the control of national governments[1] and can divest domestic law of its authority over its own territory (through class actions introduced in the United States, for example). Governments should refrain from reacting in a Pavlovian manner and denouncing this phenomenon as “American hegemony” given that agents of judicial globalisation may be located within their own borders (activists, corporations[2] or even their own judges). Class actions aimed at European banks or insurance companies suspected of holding assets belonging to victims of anti-Semitic persecution during the Second World War, and the recent shareholder suit against Vivendi in a New York court for misstatements concerning its financial position provide examples, now almost commonplace, of this sort of phenomenon.

We must examine the legal challenges created by globalisation

The primary characteristic of global law is its deterritorialisation: it tends to dis-articulate (“de-homogenise”) geographical space, blurring distinctions between national legal systems, as well as between national law and conventional international law.

It redefines political relationships – a small number of activists can challenge a national government – and seeks to derive its legitimacy from its effectiveness.  Indeed, global law is not in itself legitimate but sets out to be effective, unlike international institutions, which are legitimate but not always effective.

It is also important to note that, at a time when economics seem triumphant, global norms are increasingly formulated in legal terms.  Law finds itself at the forefront of most other activities, in the form of regulation, regulatory control, “soft law” or best practice. It is also through law and justice that the world’s history is constructed or adjusted. They allow the plight of victims to be revealed, as through the trials of participants in the Holocaust –Eichmann, Barbie, or even Demjanjuk, a guard at Sobibor – and the individuals prosecuted by international criminal courts and tribunals. Law and justice provide a new social imaginary, one with which we are having trouble familiarising ourselves.  And yet current events continue to demonstrate that the judicial stage is remarkably accessible and intelligible, despite the reputation of law and justice for complexity. Debate in court is public, transparent, and adversarial.  It tends to reveal what has been hidden, to elucidate what is obscure, to simplify what is complex, and in doing so it satisfies contemporary society’s visceral need for transparency and comprehension. Through its specific characteristics – the presence of the accused and the victim, accusation in public and under the direction of a judge − the judicial stage can help bring about cathartic processes.

Global law has four characteristics, the relative importance of which varies according to the nature of the dispute:

-professionalisation and increasing technicality, as is demonstrated by the sometimes late or inadequate proliferation of accounting, prudential and technical norms;

-privatisation, which becomes apparent at the stage of the creation of a norm or standard (particularly with the conditions for the emergence of “soft law” or “consensus”), at the investigative stage in the case of offences or litigation in civil or commercial law, and at the dispute settlement stage (as is demonstrated by the development of arbitration).   Naturally, this characterisation does not imply any value judgement or approval;

-“jurisdictionalisation”, reflected in the growing importance of the European Court of Justice and the European Court of Human Rights (which tend to act like supreme courts), and in the difficult emergence of a system of international criminal justice;

-internationalisation, because the actors are now global (powerful countries and multinational corporations, for example) and the challenges are also global (regulation of the economy, terrorism, the environment, climate change, etc.).

This internationalisation of law was initially the product of United States law, whose extraterritorial effects are well known and which is one of the main beneficiaries of “forum shopping”, occurring when litigants (especially companies) search for and select the court that will try their case. At the same time, however, US law is also the source of a form of pathology involving an excessive “judiciarisation” of social relationships. This phenomenon results in often prohibitive costs, worrying inequalities in access to law and justice, and a risk of legal uncertainty and insecurity.

Despite its international scope and the fact that it allows disputes to be settled outside the place of their origin, US law is fairly resistant to foreign influence and takes little account of the international justice rulings. The 2008 Medellin case and the lack of consideration given to the positions of the International Court of Justice demonstrate that US law, as it stands now, resists all international influence.

Global law has become a new challenge for French diplomacy

French legal culture seems unprepared to deal with globalisation for a number of reasons.

First, globalisation is dependent on actors that are traditionally weak in France: intermediary bodies, civil society, the private sector, even the judiciary and legal professions since their members are small in France as compared to neighbouring countries. The fragmentation of legal professions in France is sometimes lamented, since the unity of the profession of “lawyer” explains the penetrative force of American legal culture. However, this is not a decisive factor. Our country possesses certain assets: a system of public law that is highly respected in Europe and enjoys worldwide recognition, and which ensures that public authorities are effectively subject to the law without any form of judicial restraint. France also has genuine expertise in the field of arbitration, in which French law as well as arbitrators based in France enjoy a strong presence. Our country has other strengths that it needs to learn to cultivate. But the various actors in civil society, in the production of law and regulation, and in dispute settlement, do not meet often enough. Conventions proposes to bring them together more frequently.

French diplomacy and its legal actors more generally can play a significant role by seeking to counterbalance the excessive Americanisation of global law. This is important because the world is increasingly turning to the most atypical of all bodies of law as a reference, and as was mentioned earlier, US law suffers important defects. Furthermore, most countries have civil law systems, including China.

In this context, our task must be to defend civil law, but not simply by adopting an aggressive or defensive attitude. Our task is also to contribute to the creation of a global law that will increasingly influence and “hybridise” all national bodies of law, including that of the United States.

Rather than seeing France as faced with globalisation, we need to consider France’s place within globalisation. It is always tempting to try to play the role of global opposition leader.  However, it is better to enter globalisation’s inner circles and intellectual bodies and then work to shape them than to maintain a lofty, critical position on the outside.

What is at stake today is our entry into the global discussion forum (in which France’s presence is still modest).  Indeed, we must intervene proactively – and no longer simply defensively – in this battle of ideas, participate in it and make our perspective heard, even if it may be different. Certain actors, particularly emerging countries, expect France to assume such a role in the legal sphere because they feel a greater kinship with our legal culture than with common law.

The Conventions initiative is important in this new diplomatic and international context

It was to help accomplish these objectives that IHEJ and the Directorate-General of Global Affairs at the French Ministry of Foreign Affairs came together to create Conventions. This partnership between a government ministry and a non-profit association is an innovation in itself.  However, the partnership represents something greater.

A dialogue is necessary today between academia and research, between the legal professions and political decision-makers in order to encourage exchange and debate on common issues and to support strategic thinking that is connected to and coordinated with the global debate. It will contribute to a new mode of production of ideas that draws simultaneously on both detailed and general data, knowledge of other cultures, an economics-based approach and a capacity for conceptualisation in various domains.

Globalisation confers upon ideas a strategic value they have not previously possessed. One of the reasons the United States is so successful in today’s world is because it intervenes early on a number of issues in order to influence the way they are formulated in public debate.

We must therefore pay greater attention to the reality of global economic, legal and political practices, which generally emerge well before they are conceptualised. Those aware of them, such as diplomats, do not always have the means or the time or perhaps the willingness to formulate and pass them on. Hence the importance of connectingtheory and practice, which is a major strength of American academia. Hence the need to establish a permanent exchange and flow between practices and their theorisation.

It is for this reason that Conventions will bring together all the actors – public and private –concerned by the globalisation of law.

[1]    It is enough to enjoy control over an asset – the US market is an example – or to gain control over a person – e.g. the Milosevic case – for national law to be paralysed.

[2]    In some areas of business French banks use English law contracts among themselves.

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About the Author

Jean-Marc Sauvé

Vice-président du Conseil d'état.
Ancien président de l'Institut des Hautes études sur la Justice.
Membre du Comité éditorial de Conventions.