“Allocating Power and Wealth in the Global Economy: The Role of Private Law and Legal Agents”

Over the past few years, scholars of global governance have paid increasing attention to the role of law and legalization in shaping the governance of global economic activity, focusing primarily on public international law and the institutions that articulate and enforce this law. In this paper, I shift the focus to the arena of private international law, particularly the dimension that concerns the rules by which global economic activity is ordered. Drawing on the literatures on the role of non-state actors and the practice of inter-governmentalism, I argue that private legal agents – the large U.S. and British law firms and their Continental competitors, the international commercial arbitration community, and managers of the major multinationals – play an increasingly important role in determining the rules of the global economic system and the relationship between global markets and the activities of states. The paper elaborates this argument in three sections. First, I describe and analyze the emergence of a transnational legal field in the context of the process of globalization, and offer an account of the institutions and actors – both public and private – that dominate this field. Second, I examine in detail the role of private legal agents in constructing and diffusing the norms that compete for influence in the transnational legal field. This section focuses on the role of private lawyers, and especially global corporate law firms, in the contemporary global political economy. Here, I argue that private lawyers should be seen as creative agents who have played an important role in articulating and disseminating neo-liberal norms throughout the transnational legal field. Third, I present sketches of two case studies of legal change in the transnational arena to illustrate the importance of private legal agents in the global political economy, and assess the importance of this process for future research on the legal and political dimensions of globalization. In these cases – the emergence of the GATS and TRIPS accords as part of the Uruguay Round of GATT negotiations, and the emergence of a semi-autonomous law of transnational commercial activity through the spread of private international arbitration – I look closely at the way legal norms are diffused through the interaction of national and transnational legal fields. My overall conclusions are two-fold. The field of private international law is the site of an ongoing process of conflict and accommodation between different national conceptions of business law, structure, and practice – and thus between legal agents who advocate these conceptions – for dominance in shaping global business activity. The emerging doctrines in this field, which privilege the autonomy and authority of private corporate agents, have a significant impact in constraining the ability of public legal agents – domestically and globally – to challenge corporate priorities in shaping the global political economy.