Forming Transnational Dispute Settlement Norms: Soft Law and the Role of UNCITRAL’s Regional Centre for Asia and the Pacific (S. Ali, Cheltenham, UK; Northampton, MA, USA; Edward Elgar, 2021)

Abstract

This book examines whether regional centers associated with global legal institutions facilitate expanded citizen engagement in global soft law making. Through an analysis of empirical research into the role of decentralized soft law making in the East Asian region, it investigates the influence of such regional centers in overcoming representational deficits in the design of cross-border dispute settlement norms.

The book analyses survey data, in-depth case studies and UNCITRAL participation records to provide a comprehensive view of the contributions of Asia Pacific states in the development and refinement of UNCITRAL dispute settlement instruments. It argues that this has corresponded with the emergence of a new form of decentralized transnational legal ordering, advancing representation and legal innovation at both regional and global levels. The book concludes that these findings support the expansion of regional centers in areas with historically limited representation in global law making.

SSRN Abstract

Keywords: Global Law Making; Transnational Legal Orders; Citizen Engagement; Soft Law; UNCITRAL; Dispute Settlement Norms; Regional Centres; Decentralization

Key Findings

“the diversity that characterizes the human family, far from contradicting its oneness, endows it with richness.”   (Universal House of Justice, 18 January 2019)

The movement toward greater inclusivity in global soft law making is set out against a backdrop of historically uneven representation in global institutions. Calls to expand participation aim at strengthening legitimacy through more inclusive representation and regional adaptation. An innovative effort to advance participation in soft law development began in 2012 with the establishment of the United Nations Commission on International Trade Law (“UNCITRAL”) Regional Centre for Asia and the Pacific. As the first Centre of its kind, it was charged with coordinating with private and public institutions in the Asia Pacific in the development, interpretation and application of global cross-border commercial and dispute settlement guidelines. The experience of this Centre offers a window into what this books describes as a new form of “Decentralized Transnational Legal Ordering.”

This book tests the proposition that the presence of regional centres has the potential to expand participation in global soft law making. It carries out a novel analysis of the influence of transnational engagement in overcoming representational deficits in the design of global soft law pertaining to cross-border dispute settlement. It does this by comparing the impact of two forms of engagement in the Asia-Pacific region, traditional ‘centralised’ engagement and the more recent ‘decentralised’ form, on the soft law-making process over a 10year period. The former is characterised by formal intermittent participation in global deliberation processes at UN headquarters through Working Group II (dispute resolution) meetings prior to 2012, and the latter characterized by informal, localised and decentralised engagement facilitated through the regional centre after January 2012 when the UNCITRAL RCAP was established.

The books key findings, drawing on in-depth case studies, a survey of 50 legal practitioners involved in regional legal reform, and empirical analysis of UNCITRAL working group participation logs suggest that regional centers such as the UNCITRAL Regional Centre for the Asia-Pacific while still in their early development, have corresponded with the emergence of a new form of “decentralized transnational legal ordering” associated with growing regional engagement and participation in global soft law design.  This is evidenced by a 63% increase in the frequency of Asia-Pacific regional input in WG II meetings, an 8% increase in official Asia-Pacific representation in the WG II, a 6.2% increase in the number of observers from the Asia-Pacific region, and an average increase of 32% in perceived levels of engagement and participation amongst regional stakeholders. Regional legal developments and innovations have likewise informed ongoing global innovation in soft law making, while inaugural localized and increasingly accessible intersession meetings have engaged a growing number of practitioners in conversations about soft law design. The substantive findings of this book, alongside unique methodological contributions in the design of a new set of indicators tracking regional participation, provide useful insights supporting the expansion of regional centres in areas with historically limited representation in global law making including from within Africa, the Middle East and South America.

Reviews

‘Shahla Ali provides a richly detailed case study that illuminates how soft law is
actually created and becomes effective. In doing so, she also shows how
transnational dispute resolution norms are developed and how they become a form
of legal regulation even in the absence of coercive enforcement power. Thus, this
book is a must for scholars of global legal pluralism, practitioners of transnational
dispute resolution, and all those interested in understanding in granular detail how
international law is created and develops power over time.’
– Paul Schiff Berman, The George Washington University, US

‘Shahla Ali’s excellent new book on the role of UNCITRAL’s Regional Centre for Asia
and the Pacific in soft law-making shows the importance of rigorous, in-depth
empirical analysis to test and support theoretical arguments calling for direct citizen
participation to confirm the legitimacy of global norms.’
– Steven Wheatley, Lancaster University Law School, UK


‘International commercial arbitration has long been subject to criticism for unequal
access to and participation in shaping the rules and practices of this transnational
legal order. Professor Ali’s book breaks new ground on this key issue for the
legitimacy of commercial arbitration by persuasively documenting a success story in
broadening and deepening Asian state participation. The book shows that the
success of UNCITRAL’s International Trade Law Regional Centre for Asia and the
Pacific may provide a model for other regions.’
– Bryant Garth, UCI Law, US and author of Dealing in Virtue


‘This book leverages original data and novel methods to show convincingly how a
regional soft lawmaking institution can overcome deliberative deficits, asymmetries in
lawmaking influence, and failures to appropriate national and local creativity in global
trade lawmaking. By imaginatively “mapping the middle,” Shahla Ali persuasively
demonstrates the integral ways that a regional body can consolidate responsive
transnational legal orders (TLOs) by harnessing state and non-state innovation and
adaptations to diverse economic and legal contexts. In so doing Ali discovers new
variants of TLOs and opens up exciting frontiers for research and theory.’
– Terence Halliday, American Bar Foundation, and co-author of Global Lawmakers:
International Organizations in the Crafting of World Markets


‘This study of the growing role of Asia-Pacific countries in the governance of
international dispute resolution combines sophisticated treatments of the relevant
legal instruments and theoretical literature with rigorous empirical analyses. It is
impossible to ignore this evidence of decentralized transnational legal ordering and
how it might be fostered by regional institutions.’
– Kevin E. Davis, NYU School of Law, US


‘It is rare to have 5 years of our work performance scrutinized academically, and
peer-reviewed. I cannot escape a sense of relief after reading this remarkable work
by Professor Shahla Ali. Her work shows the importance of having more Regional
Offices, not only of UNCITRAL, but, I dare to say, also of the HCCH and UNIDROIT.
This book demonstrates how they are key enablers of legal reforms and relevant
platforms to ensure equal access to legal knowledge. One of the possible
conclusions reading this book, is that such work reduces non-tariff (sometimes
invisible) trade barriers, and has tremendous side effects like levelling the playing
field for practitioners and legal educators from parts of the world often meriting less
attention and resources. For example, without such work, we would have never seen
DPR Korea or Laos adopting the CISG and its core value: party autonomy. This
book is indispensable for any one engaged with legal reforms based on international
cooperation.’
– João Ribeiro-Bidaoui, Permanent Bureau of the Hague Conference on Private
International Law (HCCH) and UNCITRAL Regional Centre for Asia and the Pacific
(2013-2018)

‘This book provides an important, empirically grounded case study of UNCITRAL
processes and their implications in Asia through its first regional center, the Regional
Center for Asia and the Pacific established in 2012. The book is critical reading for
those interested in participation and representation in the transnational legal ordering
of dispute settlement norms, the increasing role of Asia globally, and the
development of a regional transnational legal order within Asia regarding commercial
dispute resolution. It supports an expansion of UNCITRAL regional centers to Africa,
the Middle East, and South America.’
– Gregory Shaffer, Chancellor’s Professor, University of California, Irvine School of
Law, US


‘This is an ambitious work. Ostensibly, it is about the role that UNCITRAL’s Regional
Center Asia-Pacific (RCAP), based in Incheon, has played in promoting UNCITRAL
soft law instruments in the Asia-Pacific. But along the way it considers the
importance of soft law in developing transnational commercial legal norms generally
and examines how Asia Pacific states have shaped and are being shaped by those
norms. The book achieves its objectives through empirical and theoretical analyses
and concludes by reflecting on the balance to be struck between centralised and
regional approaches to globalisation. At a time when many Asia-Pacific jurisdictions
are seeking to transform themselves into international commercial dispute resolution
hubs for the post-COVID-19 era, it deserves a wide readership.’
– Judge Anselmo Reyes, Singapore International Commercial Court
‘An impressive work on a vital subject.’


– William W. Park, Professor of Law, Boston University, US
‘A powerful critique of Western-dominant legal orthodoxy, providing vital alternatives
to the hegemonic narrative of International arbitration and mediation. Not only a
“must-read,” but of urgent relevance to democratic resolutions of disputes in Asia
and across the globe.’
– Hiroshi Fukurai, author of Original Nation Approaches to Intern-National
Law (2021), past President of the Asian Law and Society Association (ALSA),
Professor of Legal Studies/Sociology, UC Santa Cruz, US


‘International law poses a dilemma for emerging markets. Politically, former colonies
rightly expect more of a say in its content; economically, stability and consistency
may be more conducive to development. This illuminating new book describes
decentralised transnational legal ordering as one outcome of this tension, tracking
the activities of UNCITRAL’s Regional Centre for Asia and the Pacific and the
manner in which it has enhanced the legitimacy — and, perhaps, the effectiveness
— of global norm-making.’
– Simon Chesterman, Dean, Faculty of Law, National University of Singapore

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