Global Private International Law
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Global Private International Law

Adjudication without Frontiers

Edited by Horatia Muir Watt, Lucia Bíziková, Agatha Brandão de Oliveira and Diego P. Fernandez Arroyo

Providing a unique and clearly structured tool, this book presents an authoritative collection of carefully selected global case studies. Some of these are considered global due to their internationally relevant subject matter, whilst others demonstrate the blurring of traditional legal categories in an age of accelerated cross-border movement. The study of the selected cases in their political, cultural, social and economic contexts sheds light on the contemporary transformation of law through its encounter with conflicting forms of normativity and the multiplication of potential fora.
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Chapter 8: Informal codes: Nike v. Kasky

Ralf Michaels and Ludovic Hennebel

Abstract

As non-State norms (codes, industry standards, various sources of transnational soft-law) multiply to fill the gaps left by the limited reach of national laws, the question arises as to how to give self-regulation ‘teeth’. The answer may be easier in the context of arbitration. The courts, however, are usually constrained by the Westphalian paradigm which still governs private international law: they will only recognise as legal the laws of other nation-States. It is difficult to imagine a set of criteria with which to assess the legitimacy of normative claims by various groups or communities: Western legal systems adhere to political, not legal pluralism. Thus, a corporate code of conduct does not qualify formally as law-making under a State-centred methodology. However protective it is (or claims to be) of the rights of sub-contractors and stakeholders in far-away places, its ‘private’ origin has meant (at least until recently) that such a code does not provide grounds for contractual liability before the courts, nor does it serve as a legal foundation for tort liability. The lack of ‘legal bite’ of this code explains its very success among corporate manufacturers relocating industry to foreign environments.

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