Weighing Global Regulatory Rules and Decisions in National Courts

• Jurisdiction: South Africa
• Published date: 30 August 2019
• Pages: 90-119
• Date: 30 August 2019
• Author: Benedict Kingsbury

Weighing Global Regulatory Rules and

Decisions in National Courts

BENEDICT KINGSBURY*

New YorkUniversity

I INTRODUCTION: GLOBAL REGULATORY

GOVERNANCE AND GLOBAL ADMINISTRATIVE LAW

Global regulatory governance is increasingly conducted by extra-national

institutions adopting administrative-style rules and regulations, or specif‌ic

decisions concerning individual entities, which affect private actors or

state agencies in ways that eventually come to be considered in national

courts. This global regulatory governance produces unfamiliar challenges

for national courts. Traditional analysis of ‘international law in national

courts’ is germane, but does not reach many of the current generation of

legal problems. This paper assesses some existing conceptual resources for

dealing with these problems, and proposes a distinctive normative

approach to a particular set of hard cases based on evaluation by the

national court of the extent to which a particular rule or decision of the

global regulatory institution satisf‌ies criteria of ‘publicness’.

This introductory section presents the arguments that the diverse actors

in global regulatory governance interact in a ‘global administrative space’,

and that rules and decisions of, and relations among, these regulatory

actors are increasingly shaped by an emerging body of global administra-

tive law. The remaining sections of this paper consider the roles national

courts play in relation to global regulatory governance, and the implica-

tions for national courts of the emerging global administrative law.

Section II puts forward a basic four-fold typology of global regulatory

institutions, and provides illustrative examples of national courts grap-

pling with global regulatory rules and decisions produced by institutions

of each type. Section III surveys some of the established doctrinal

approaches taken by national courts in determining whether and how to

give effect to rules and decisions of extra-national institutions in contexts

of global regulatory governance, where the external act is neither a treaty

nor a foreign state’s law, nor a court decision. Section IV turns to a major

normative problem: how should a national court appraise such a regula-

* Murry and Ida Becker Professor of Law and Director of the Institute for International Law

and Justice, New YorkUniversity School of Law.

A different version of this paper, focused on the work of Sir Kenneth Keith in the New

Zealand courts, appears in Claudia Geiringer and Dean Knight (eds) Seeing the world whole: essays

in honour of Sir Kenneth Keith (2008). Many thanks to Laura Rees-Evans and Fernando Lusa

Bordin for research assistance and very helpful comments.

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2009 Acta Juridica 90

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tory governance decision or administrative rule adopted by an external

institution? This latter issue is only just coming to be clearly delineated. As

such, there is no standard line of analysis of the problem among national

courts. However, this paper suggests the possibility of a standardised

approach that can be informed by concepts and ideas from global

administrative law.

Instead of neatly separated levels of regulation (private, local, national,

inter-state), a congeries of different actors and different layers together

form a variegated ‘global administrative space’ that includes international

institutions and transnational networks, as well as domestic administrative

bodies that operate within international regimes or cause transboundary

regulatory effects.

1

The idea of a ‘global administrative space’ marks a

departure from orthodox understandings of international law, in which

the international is largely inter-governmental, and there is a strict

separation of the domestic and the international. In the world of global

governance, transnational networks of rule-generators and interpreters

cause such strict barriers to break down. This new space is increasingly

occupied by private regulators and hybrid bodies, in addition to the

traditional international institutions and organisations, such as those of the

United Nations. Alot of the administration of global governance is highly

decentralised and not very systematic. National courts can thus f‌ind

themselves as actors in global regulatory governance, reviewing the acts of

international, transnational and especially national bodies that are in

effect, administering global governance systems. In some cases the

national courts themselves form part of the practical administration and

administrative review of a global governance regime. This reality is

unavoidable, even though it is not, of course, necessarily the way in

which national judges wish to view themselves or their responsibilities.

This paper seeks to show how the emerging concept of global administra-

tive law, which is animated in part by the idea that much of global

governance can usefully be analysed as administration, may provide ways

for national courts to structure their inescapable engagements with these

challenging issues.

Global administrative law is not a new idea, but it has taken on new

meanings and signif‌icance.

2

One approach understands global administra-

tive law as the legal mechanisms, principles and practices, along with

1

B Kingsbury et al ‘Foreword: global governance as administration’ (2005) 68 Law &

Contemporary Problems 1.

2

NYU Law School Institute for International Law and Justice’s research project on Global

Administrative Law has a website, including a series of working papers and extensive

bibliographies, as well as links to papers from other scholars around the world: www.iilj.org.

Sets of papers from the f‌irst phase of this project appear in three journal symposia: (2005) 68 Law

& Contemporary Problems; (2006) 17 European Journal of International Law; (2005) 37 New York

University Journal of International Law & Policy.

91WEIGHING GLOBAL REGULATORY RULES AND DECISIONS

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