Forming Transnational Dispute Settlement Norms


Forming Transnational Dispute Settlement Norms

Soft Law and the Role of UNCITRAL''s Regional Centre for Asia and the Pacific

9781789907162 Edward Elgar Publishing
Shahla F. Ali, Professor and Associate Dean (International) and Director, Program in Arbitration and Dispute Resolution, Faculty of Law, University of Hong Kong, Hong Kong
Publication Date: 2021 ISBN: 978 1 78990 716 2 Extent: 288 pp
This thought-provoking book examines whether regional centres 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 centres in overcoming representational deficits in the design of cross-border dispute settlement norms.

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This thought-provoking book examines whether regional centres 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 centres in overcoming representational deficits in the design of cross-border dispute settlement norms.

Shahla F. Ali 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. She 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 centres in areas with historically limited representation in global law making.

Students, scholars and practitioners of transnational dispute resolution and comparative law will find this book to be critical reading. Its identification of best practices and law and policy recommendations will also be of interest to those working in global legislative design and policy.
Critical Acclaim
‘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, Georgetown University Law Center, 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

Contents: Preface PART I INTRODUCTION: SOFT LAW FORMATION IN A GLOBAL CONTEXT 1. Development of transnational legal norms 2. Transnational soft law norm formation: challenges and developments in extending representation development of transnational legal norms 3. From the central to the regional: contributions of UNCITRAL and RCAP on soft law-making in transnational dispute resolution 4. Indicators of representation in global governance: assessing regional engagement, representation and diversity through UNCITRAL RCAP PART II RCAP CASE STUDIES: DEVELOPMENT AND EXPANSION OF REGIONAL SOFT LAW 5. Singapore Convention on International Settlement Agreements Resulting from Mediation 6. UNCITRAL Working Group III deliberations on investor–state arbitration reform 7. Transparency rules 8. Online dispute resolution 9. UNCITRAL Model Law on International Commercial Arbitration 10. Conciliation Rules PART III EMPIRICAL FINDINGS ON THE CONTRIBUTION OF RCAP IN EXTENDING REGIONAL REPRESENTATION 11. Extending soft law representation through regional centres:empirical analysis 12. Conclusions Selected Bibliography Index
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