Adjudication without Frontiers
Edited by Horatia Muir Watt, Lucia Bíziková, Agatha Brandão de Oliveira and Diego P. Fernandez Arroyo
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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