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Citation: Fahey, E. ORCID: 0000-0003-2603-5300, Odermatt, J. and O'Loughlin, E. (2019). Whose Global law? Comparative, Regional and Cyber Approaches to Law-Making (City Law School (CLS) Research Paper No. 2019/02). London, UK: The City Law School.

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City Law School Working Paper 2019/02

Whose Global law? Comparative, Regional and Cyber Approaches to Law-Making Report of the CLS Global Law Research Series 2019

ELAINE FAHEY, JED ODERMATT AND ELIZABETH O’ LOUGHLIN August 2019

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ELAINE FAHEY, JED ODERMATT AND ELIZABETH O’ LOUGHLIN The City Law School

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WHOSE GLOBAL LAW? COMPARATIVE, REGIONAL AND CYBER APPROACHES TO LAW-MAKING

City Law School Global Law Summer Series Report 2019

Elaine Fahey, Jed Odermatt and Elizabeth O’ Loughlin∗

Abstract

The 2019 Global Law Research Dialogue Series convened by Elaine Fahey, Jed Odermatt and Elizabeth O’Loughlin

was entitled ‘Whose Global Law? Comparative, Regional and Methodological Lenses’. The series focused on three

elements: 1) comparative law approaches to the study of global law, 2) regional approaches to law-making, 2) cyber

law-making and methodology, as topical case studies, political problems or eternal legal methodology issues

warranting discussions and reflections. The thematic areas selected in 2019, including one case study (Cyber), were

chosen for their capacity to generate deliberation as to the global and its complex intersection with inter alia public,

private, regional, criminal law and international law – not a conclusive list. The distinctive views of comparative public

law and public international law continue to be distinct and separate strands of research warranting further reflection.

In keeping with the aims of the series, the 2019 instalment brought together an array of scholars from public and

private law, governance, science and technology, political economy and practice to reflect upon our understanding of

law beyond the Nation State.

Key words: Global; comparative law; regional approaches; public international law; cyber law; methodology; law

beyond the state

Introduction 1. Global [email protected] is an interdisciplinary research series which takes places annually in

the Spring/Summer semester at City Law School and is now in its fourth year. The

seminars, dialogues, book talks and conferences have a broad mix of speakers

approaching the idea of law beyond the State, from a variety of perspectives and

approaches. The series has no fixed themes or agenda other than to act as a vibrant

forum to discuss the ‘global’. It is deliberately conducted at the end of the academic year

to allow intellectual space and a forum for new works in progress or new publications to

be discussed in a relatively informal and open environment. Global [email protected] is

additionally run as a collaboration between the International Law and Affairs

Group (ILAG) and the Institute for the Study of European Law (ISEL) but also seeks to

include public and private law scholars working at City where possible and expand the

diversity of scholars involved.

∗ CITY LAW SCHOOL, CITY, UNIVERSITY OF LONDON.

https://www.city.ac.uk/about/schools/law/research/[email protected] https://www.city.ac.uk/about/schools/law/research/international-law-and-affairs-group-ilag https://www.city.ac.uk/about/schools/law/research/isel

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2. The 2019 Global Law Research Dialogue Series convened by Elaine Fahey, Jed

Odermatt and Elizabeth O’Loughlin was entitled ‘Whose Global Law? Comparative,

Regional and Methodological Lenses’. The series focused on three elements: 1)

comparative law approaches to the study of global law, 2) regional approaches to law-

making, 2) cyber law-making and methodology, as topical case studies, political problems

or eternal legal methodology issues warranting discussions and reflections. The thematic

areas selected in 2019, including one case study (Cyber), were chosen for their capacity

to generate deliberation as to the global and its complex intersection with inter alia public,

private, regional, criminal law and international law – not a conclusive list. The distinctive

views of comparative public law and public international law continue to be distinct and

separate strands of research warranting further reflection. In keeping with the aims of

the series, the 2019 instalment brought together an array of scholars from public and

private law, governance, science and technology, political economy and practice to

reflect upon our understanding of law beyond the Nation State.1

***

Event 1: Comparative Methodologies and Global Law

Introduction

3. The process of globalisation has fundamentally changed the purpose and remit of

international law, fuelling a mounting interaction between international and domestic law

and politics. The world order, and by extension the reach and limit of public authority, is

increasingly globalised, privatised, and individualised, as a multitude of actors (state,

non-state, public, private, individuals) now operate and make meaningful contributions to

the legal and political world. Globalisation ‘literally turns the world inside-out, nationalizing

international law and internationalizing national law’.2 This has given rise to greater

convergence over, for example, the content of domestic constitutions,3 and the

jurisprudence of domestic and international judicial decisions.4 Any use of the term ‘global

1 All events were free and open to the public in order to ensure its accessibility, topicality and diversity and featured a broad mixture of national and international speakers, the organisers and City scholars so far as possible. 2 Anne-Marie Slaughter, ‘Governing the Global Economy Through Government Networks’ in Michael Byers (ed), The Role of Law in International Politics: Essays in International Relations and International Law (OUP 2000) 177. 3 Jiunn-Rong Yeh and Wen- Chen Chang, ‘The Emergence of Transnational Constitutionalism: Its Features, Challenges and Solutions’ (2008) 27(1) Penn State International Law Review 87, 97. On the influence of the international rights regime upon the spread of formal human rights into national constitutions, see Zachary Elkins, Tom Ginsburg and Beth A Simmons, ‘Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice’ (2013) 54(1) Harvard International Law Journal 61, 63. 4 This can be evidenced in a number of ways: through domestic judicial references to international law and norms, including the decisions of international courts and tribunals; through domestic judicial references to the decisions of foreign courts and foreign law; through international courts’ references to the decisions of other international courts; and through international courts’ references to the decisions of domestic courts and laws. See generally, Anne-Marie Slaughter, ‘Judicial Globalisation’ (2000) 40(4) Virginia Journal of International Law 1103; and Sujit Choudhry, The Migration of Constitutional Ideas (CUP 2007).

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law’, however, has come with stark warnings. For example, it suggests that there is one

single global law to talk of, when its use and meaning is deeply ambiguous.5 Those who

study and engage with global law, rather than studying a settled concept, must acc