I am happy to announce the publication of a collection of essays: Harmonizing Law in an Era of Globalization: Convergence, Divergence, Resistance, published by Carolina Academic Press. I include a short abstract and the opening materials of the book below. Summary materials may also be accessed here.
The essays in this book highlight the most important ways in which domestic, international, public, and private legal systems interact with each other. The initial essays provide a theoretical overview of the study of legal harmonization - that is, of the nature and character of communication, accommodation, amalgamation, or resistance among legal systems. These interactions occur within horizontal relationships, between political institutions operating at the same level of authority. Vertical relationships between political institutions whose relationships are hierarchical have given rise to different patterns of interaction. New legal orders are being created through the adoption of international legal instruments that may reach nation-states, private entities, and individuals. Each has the potential for significantly affecting the sources of authority over public and private actors. Other essays illustrate the many ways in which communication between legal systems produce very real, if very different, effects across the world. A descriptive Preface, table of contents, contributor list and table of cases is included for download. The book may be ordered through the publisher at this site.
Contents
Preface xiii
Acknowledgments xxi
The Contributors xxiii
Table of Cases xxvii
Table of Legislation xxxv
1 Harmonizing Law in an Era of Globalization—Convergence,Divergence,
and Resistance:An Introduction and Analysis 3
Larry Catá Backer
Reference List 27
Cases 33
2 The Harmonization ofHuman Rights Laws:Guaranteeing the Plurality
ofIndividual Rights 35
Jo M.Pasqualucci
I. Introduction 35
II. Vertical Harmonization of Human Rights Laws resulting from
Supranational Enforcement Organs 37
A. Interpretation of Substantive Treaty Rights and Regulations 37
B. Advisory Opinions and General Comments 38
III. Horizontal Inter-system Harmonization (Cross-Fertilization) 39
IV. Tension Between Universal Harmonization of Human Rights and Cultural
Pluralism 40
V. Impediments to the Harmonization of Human Rights Law 41
A. State Resistance to Harmonization 42
1. Resistance to the Ratification of Human Rights Treaties 42
2. Ratification with Reservations or Understandings 42
3. Failure to Accept the Jurisdiction of Supranational Tribunals or
Organs of Protection 43
4. Failure to Execute Decisions of Supranational Tribunals 43
B. Doctrinal Impediments to Harmonization ofHuman Rights Laws 44
1. Subsidiarity of International Enforcement Organs Limits
Harmonization 45
2. Margin of Appreciation Limits Harmonization 46
C. Multiplicity of International Fora 46
VI. State Capitulation and Compliance 47
VII.Proposals to Increase Harmonization ofHuman Rights Laws 49
IX. Conclusion 51
Reference List 51
Cases 53
3 In Pursuit of Restorative Justice:The South African Truth & Reconciliation
Commission in Light ofthe Rome Statute for the International
Criminal Court 55
Emily R.Atwood
I. Introduction 55
II. South Africa’s Truth & Reconciliation Commission (TRC) 57
A. Brie fHistory of South Africa 57
B. Establishment ofthe South African Truth & Reconciliation Commission 60
C. The Effectiveness of the TRC 64
III. The Rome Statute of the International Criminal Court (ICC) 67
A. Development of an International Criminal Court 67
B. The International Criminal Court Arrives 70
C. Role of the ICC in Domestic Conflicts 71
IV. Lessons from South Africa: The Need for Truth and Reconciliation within
the International Criminal Court 74
Reference List 76
Statutes 79
Cases 80
4 Tribal Courts:The Battle to Earn Respect Without Sacrificing Culture and
Tradition 81
Melissa L.Tatum
I. Tribal Courts—Who They Are and What They Do 81
II. Where Tribal Courts Fit 84
III. Efforts to Obtain Internal and External Legitimacy 91
IV. Education 92
V. Tribal Common Law 93
VI. Traditional Dispute Resolution Mechanisms 94
VII.Conclusion 95
Reference List 96
Cases 97
5 Black,White,and Shades of Grey: Horizontality of Directives Revisited 99
Takis Tridimas
I. The Distinction Between Vertical and Horizontal Effect 100
II. Direct Effect and Reviewability of Member State Discretion 102
III. Directives and Correlative Obligations on Individuals 104
IV. Correlative Obligations in Proceedings Against Public Authorities 105
A. The Case Law of the Court of Justice 105
B. The Limits of Correlative Obligations 107
V. Collateral Challenge in Civil Proceedings 110
A. The Judgment in CIA Security and Its Aftermath 111
B. Reliance on Directives in Contractual Proceedings 113
VI. Obligations on Individuals Under Marleasing 116
A. The Uncertainties of Marleasing 116
B. Interpreting in a Vacuum 120
VII.Conclusion 121
Reference List 122
Cases 123
6 Dispute Settlement and Legal Harmonization in Mercosur 129
Welber Barral
I. Introduction 129
II. Mercosur: The Current Situation 130
III. “Institutionalists” and “Pragmatists” Vie for Control 131
IV. The Current Dispute Settlement System 134
V. Innovations in the Protocol of Olivos 136
VI. Pending Problems 137
VII.Conclusion 139
Reference List 140
7 The Dialogue of Destruction: Globalizing Cultural Property Protection
Law to Meet the Challenges of Today 141
Seema Lal
I. Introduction 141
II. Defining Culture 142
III. Defining Cultural Property 143
IV. Why Protect Cultural Property? 144
V. Cultural Nationalism Contra Cultural Internationalism 144
A. Cultural Nationalism and Its Critique 144
B. Cultural Internationalism and Its Deficiencies 146
VI. Current State of International Law Protecting Cultural Property 147
A. Customary and Conventional International Law 148
B. Wartime Protection 149
1. Hague Convention 149
C. Peacetime Protections 151
1. UNESCO Convention 151
2. World Heritage Convention 152
3. UNIDROIT Convention 153
VII.Application of the Hague Convention in Cases ofInternal Conflict:
The Example of Yugoslavia 155
A. The Military Campaigns and Property Destrution in Yugoslavia 156
B. International Protection in Internal Conflicts 157
1. Article 19 157
2. The Law of Internal Conflicts 157
3. Protection under the International Framework in Yugoslavia 158
C. Changing the Hague Convention to Better Protect Cultural Property
Affected by Internal Conflict 158
VIII. Toward Alternative Frameworks: Protection of Heritage and Individual
Responsibility for Destruction of Cultural Objects 160
Reference List 163
Treaties 165
8 The Pitfalls of Harmonization in Antitrust Law 167
Bruce Carolan
I. Introduction 167
II. Overview of Article 82, E.C. Treaty 170
III. Refusal to Supply Spare Parts and Abuse ofa Dominant Position; The
Hugin Case: Introduction 171
A. Commission Decision 171
1. Facts 172
2. Commission Legal Assessment 173
B. The Advocate General’s Recommendation 175
1. Dominance 175
2. Abuse of Dominance 176
3. Effect on Trade between Member States 177
C. Judgment of the European Court of Justice 178
1. Dominant Position 178
2. Abuse of Dominance 178
3. Effect on Trade between Member States 179
IV. The Brass Band Case 181
A. Introduction 181
B. Facts 181
C. Dominant Position 181
D. Abuse of a Dominant Position 182
V. Conclusion 183
Reference List 184
Cases 184
9 Global Competition Implications for Enforcement 185
Beth Farmer
I. Introduction 185
II. Federalism—U.S. Antitrust 186
III. Costs and Benefits of Multiple Enforcement 189
IV. Factors One and Two: Recognizing Divergent Norms and Policies 191
V. Development of Antitrust Regimes 194
VI. Comparative Competition Law 194
VII.Costs of Multiple Enforcement 195
VIII. Reasons for Different Schemes 195
IX. Competition Law Goals 196
X. Extraterritorial Enforcement 200
XI. Conflicts in Enforcement 200
XII.Summary 201
XIII. Standard for Evaluation of Solution 202
A. Supranational Agency: WTO Model 202
B. Uniform Statute 203
C. Consultative Process 203
XIV. Conclusions 204
Reference List 204
Cases 206
Treaties and Statutes 208
Appendix A 208
Appendix B 210
Appendix C 211
Framework for Cooperation 211
I. Confidentiality 211
II. Procedures Involving the Merging Parties 212
III. Conduct of Joint Investigation 213
A. Strategic Planning 213
B. Document Production 213
C. Witness Evidence/Experts 214
IV. Settlement Discussions 214
V. Statements to the Press 215
Appendix D. Statute of Monopolies 215
10 The Pursuit of Law 217
Vivian Grosswald Curran
I. Introduction 217
II. Between Legal Theory’s Scylla and Charybdis 219
III. The Chinese Head Tax Case 223
IV. The Hart-Radbruch Debate’s Original Import 227
V. Why the Debate Matters Today 230
VI. The Telling Story of French and German Courts During Nazism and
Fascism 232
Conclusion 235
Reference List 236
Case 239
Statutes 240
11 Legal Certainty,the Common Law Tradition,Resistance to Harmonization
and Convergence in the European Community Legal Order 241
Gunnar Beck
I. Introduction 241
II. The Hierarchy ofAuthorities 244
III. Defining a Precedent—The Difficulty of Distinguishing between
Ratio and Obiter Dictum 246
IV. The Possibility of Distinction and the Danger of Extinction (of Precedents) 249
V. Judicial Decision-Making in the Absence of Precedents 251
VI. The Judicialization of Decision-Making—Judges and the Ordinary
Meaning ofWords in Statutes and Contractual Agreements 252
VII.Judicial Law-Making under the Common Law 257
VIII. The Application of E.C. Law under the Common Law 259
A. The Acte Clair Principle 261
B. Precedent 264
C. The Procedural Prerogative 269
D. Judicial Decisions between Ignorance and Oversight 270
E. Cost and Delay 272
IX. Conclusion 273
Reference List 275
Cases 276
12 From “Mother of the World”to the “Third World”and Back Again:
The Harmonization Cycle Between Islam and the Global Economy 279
Christopher Stuart
I. Introduction 279
II. Relevant Patterns ofHarmonization and Divergence 281
III. Islamic Law Primer 282
A. A Short Political History ofIslam 283
B. Sources ofIslamic Law 284
C. Schools of Islamic Law 285
IV. Traditional Law Period 285
A. Islamic Sales Law 286
B. Roman Law and the International Legal System 287
C. Convergence among Classical Legal Systems 288
V. National Law Period 289
A. Islamic Law 290
1. “Islamic Investment Law” 1700–1945 290
2. Corporate Governance and Capital Markets 291
B. The International System Outside the Dar al-Islam 292
1. Investment Banking 292
2. Corporate Governance 292
C. The Relationship between Internationalist Regimes and the
Dar al-Islam 293
1. Disparity between Islam and the Rest ofthe World 293
2. The Islamic World “Falls Behind” 294
VI. Modern Legal Period 295
A. Islamic Law 296
1. Islamic Banking 296
2. The Example ofSaudi Commercial Law 298
3. Gulf Cooperation Council 299
B. International System 300
C. Nature of Interactions between the West
and the Dar al-Islam 301
VII.Conclusion 302
VIII. Postscript 303
Reference List 304
13 Harmonization,Divergence,and Resistance:The European Union and
the Dynamics of Multilayered Governance 309
Larry Catá Backer
Introduction 309
Reference List 341
Cases 346
Treaties and Statutes 347
14 Postscript 349
Larry Catá Backer
Reference List 351
Index 353
Preface
Globalization and harmonization are important buzzwords in law, economics, poli-
tics and public policy. Like any buzzword, both terms tend to take on specific meanings
to suit the purposes ofthose who use them.
Fifty years ago, globalization could have been understood to mean the emerging
Marxist-Leninist world order. Many believed that humanity was inevitably progressing
away from capitalism and autonomous nation-states to a global community based on
principles of Marxism which would serve as the common language of political and so-
cial organization in the world. Five hundred years ago, and in certain parts of the con-
temporary world, many believed that globalization would come in the form of the in-
evitable earthly triumph ofone or another singular, true and universal religious system.
This form of globalization would produce a common language of social, political, and
economic organization based on a common normative structure provided by the struc-
tural and behavioral framework ofthe dominating religion.
Today, in much ofthe world, globalization is commonly conceived ofas the emerging
system ofprivate interactions structured, for the most part, through economic relation-
ships. Within this framework, the value of particular expressions of social and political
action is to be judged on the basis ofthe way in which each might contribute to the opti-
mization offree, transparent and fair markets. For this purpose, for example, democra-
tic political systems might be thought ‘better’ than other systems. Likewise, ‘free market’
economic norms might be judged better at optimizing private market functioning than
systems based on ‘command economy’ principles. This form of globalization, like the
others described above, is believed to transcend the more limited autonomous self-con-
tained political, economic, social and religious communities. The nation-state, in partic-
ular, is meant to serve as a cog in the great wheel of global markets, devoting its law-
making power to enhancing the transparency, fairness and efficiency ofthose markets.
One can see, then, that globalization can be understood as both a descriptive and a
normative concept. At its most general, globalization is the term used to describe the
communication, interaction, migration, and intercourse between autonomous commu-
nities. At its most specific, globalization is the term used to describe particular forms of
interaction prevalent in any particular historical epoch. As a normative concept, global-
ization is the name that is given to a particular ideology of transnational interactions
among and between members ofdifferent political communities.
Harmonization is sometimes used as a synonym for globalization. But harmoniza-
tion is something quite different. Harmonization is a consequential concept. It sug-
gests a course—or the method—for any of the many forms of globalization, rather
than the normative basis of globalization itself. If globalization is the objective—the
substance—of universalism, then harmonization focuses on the means of attaining
those substantive ends. At its most basic, harmonization suggests the search for com-
monalities. This may mean little more than finding a common language through
which autonomous communities may communicate. The spread of English as a
‘global’ language is a good example of this form of harmonization as communication.
Standardization of products—from light bulbs, to time, to weights and measures—is
another good example ofharmonization.
But harmonization usually suggests a search for common behavior rules. Harmoniza-
tion as integration can take many forms, from voluntary and non-coercive, to mandatory
and specific.Much modern integration is implemented through law making—as political
communities today tend to hold most of the power to coerce behavior from their mem-
bers. In the United States, the creation ofan idealized form ofcorporate governance, the
Model Business Corporation Act, by a non-governmental organization, the American Bar
Association, has served as an influential model for state law and, as a consequence, as an
important vehicle for the harmonization of corporate law on a voluntary and non-coer-
cive basis. In the European Union (the “E.U.”), the adoption of framework legislation—
called “directives” in the E.U. treaty system are particularly important. Directives are laws
directed to the Member States of the European Union that obligate each of the Member
States to amend its own domestic law to achieve the objectives specified in the directive.
Where the directive is specific, transposition ofthe directive to domestic law may require
adoption of the directive verbatim; otherwise, Member States may have substantial flexi-
bility. But legal harmonization is not necessarily dependant on governmental action.
Adoption of common contractual terms within an industry also has been as effective in
integrating practice on a global basis. For example, common terms and understandings
used in letters ofcredit were developed through agreement by the major banks that con-
trolled the majority ofthose transactions and are now enforced by contract.
For all of their power, neither globalization, as a set of influential conduct norms,
nor harmonization, as a collection ofmethodologies ofintegration, have ever been able
to assert dominance over all individuals and all communities. As a historical matter,
every form of globalization, and every attempt to integrate behavior within a single set
of norms, has met resistance. World history does not reveal a time in which everyone
has embraced one single set of norms. While technology has made it more likely that
some form of universal system could be implemented, technology has yet to find a way
to bend the will of individuals or communities to affirmatively embrace any set of be-
havior norms either would rather reject.
Not every autonomous community encountering any given framework for globaliza-
tion would invariably choose to embrace those universal behavior norms, irrespective
ofthe manner in which the community is confronted by that framework. Not every au-
tonomous community reacts positively to inducements to modify rules and law to im-
plement (or induce) greater integration with global standards. Such inducements can as
easily be interpreted as attempts to shift the power to govern from within a political
community to groups outside of, and not subject to the control of, the members of the
political community now subject to its rule making power.
For nation-states recently emerging from out of systems of colonial control, the parallels
may be too striking to ignore without difficulty.For example, Cuba under the leadership of
Fidel Castro from 1959 into this century has refused to conform to the economic behavior
model developed through global economic institutions like the International Monetary
Fund and the World Bank. The Cuban leadership grounded this refusal on a rejection of
the normative basis of those rules. In any case, the Cuban state apparatus has refused to
surrender its power to determine its own economic course to another entity. The difficulty
may blind nation-states to differences between colonial systems of control and participa-
tion in global networks ofprivate relationships bounded by common rules ofbehavior. Of
course, resisting nation-states may have other motives as well. Thus, the Cuban leadership
might have chosen to resist internalizing the narrative framework of economic globaliza-
tion based on liberalized trade regimes as a matter ofpolitical choice. They have sought to
act as agents ofa competing system ofglobalization—a Marxist-Leninist global order.
Institutional religion today also plays a role, as both a facilitator ofand source ofresis-
tance to, the dominant ideology oftransnational interactions understood as globalization
as well as to the means embraced to attain globalization’s aims. Where a particular insti-
tutional religion achieves hegemony within a political community, the normative frame-
work ofthat religion can serve as a competing ideology ofglobalization. In this sense, re-
ligion might act as a source ofresistance to other globalization systems. Where particular
institutional religions are actors within a political community, each can seek to influence
the form in which globalization is understood or implemented. For example, the institu-
tional Catholic Church has played a very active role in seeking to expand a “social justice”
framework for economic globalization. On the other hand, the normative framework of
institutional religion can play a decisive role in harmonizing practices among cultures.
Institutional Islam, for example, might serve a critical role in naturalizing global com-
mercial norms into majority Muslim states by providing a system of translation and
transposition into the traditional normative and legal frameworks ofthose states.
In the absence of consensus on the value of harmonization, the appropriate goals of
convergence, or basis on which either is to be effected, the world community simultane-
ously experiences both acute resistance to one or another form of of convergence and
strong efforts to erect ever more effective frameworks for convergence. The essays in
this book highlight the ways in which legal systems interact with others, and the reasons
those interactions are important in an increasingly global social order. The initial essays
focus more generally on theoretical issues in legal harmonization—that is, they focus
on the nature and character of communication between legal systems and their effects.
The essays that follow are intended to illustrate the many ways in which communication
between legal systems have been producing very real, ifvery different, effects across the
world. These essays range over a wide variety ofissues relating to harmonization.
All of the essays touch on communication—the great fundamental problem of har-
monization. Communication, in a variety of forms, presents problems that loom large
even in the context of the development of what appear to be universal norms. The es-
says suggest the ways communicative difficulties can affect harmonization and serve as
an organizing principle of resistance. Each essay thus serves as an illustration of the
many paths taken by harmonization in the context ofthe current norm system ofglob-
alization. The essays show that globalization can produce powerful incentives to harmo-
nize law, either voluntarily or coercively. But they also demonstrate that globalization
produces great inducements to divergence and resistance.
The materials are divided in six parts. Part I consists of an introductory essay that
provides a general framework for understanding issues of harmonization, convergence
and resistance.This essay provides a foundation for approaching issues ofharmonization
in context ofglobalization. It suggests that harmonization is particularly powerful in the
context ofglobal economic activity, and that the focus on economic activity has particu-
larly powerful effects on reshaping the divisions between public and private spheres of
regulation. Corporations, bridging public and private spheres ofactivity, serve as a pow-
erful illustration ofharmonization within the normative framework provided by global-
ization. It ends with a consideration ofthe other essays in the collection in the context of
the framework developed for understanding globalization and harmonization.
The essays that follow are arranged in broad thematic sections that each focus on dif-
ferent aspects ofharmonization, its limitations, and the nature ofopposition to harmo-
nization projects. The essays each shed light on an aspect of the dynamic and some-
times elusive character of harmonization in the many particular areas of regulation in
which it seems to apply.
Part II—Introducing Issues of Horizontal and Vertical Harmonization: Convergence
and Divergence in Global Human Rights Regimes—includes two essays that consider
convergence and divergence of norms in the increasingly unified global ordering of
norms protecting individual and communal rights. The emerging unified systems of
human rights well evidence both the general problems of harmonization among na-
tion-states, and the specific problems of harmonizing rules of individual rights. One
essay suggests the ways in which the harmonization of international human rights law
fosters personal distinctions and protects individual diversity within a framework ofre-
spect for the rights of others. The other looks to Africa to explore the intersection be-
tween national sovereignty and emerging international systems of behavior control,
where states attempt to conform the rules for Truth and Reconciliation Commissions to
the emerging standards under the treaty establishing the International Criminal Court.
Part III—Convergence and Integration in Federal and Quasi-Federal Systems—intro-
duces another important and difficult aspect of harmonization. The two essays in this
section consider convergence and integration in governance systems arranged
vertically—federal and quasi-federal systems. One essay focuses specifically on the dif-
ficulties of harmonization among the three distinct governmental and court systems of
the United States—federal, state, and tribal. It explores the current body ofrules defin-
ing the place of the tribal courts in the federal system and the resulting pressures on
tribal courts to look and act the same as state and federal courts. The other essay focuses
on the functioning of framework legislation, directives, in the European Union. This
essay looks at the extent to which directives issued by the European Community institu-
tions, as harmonization instruments, may give rise to obligations against individuals.
Part IV—Convergence and Divergence in Public and Private International Legal
Regimes—consists of explorations into issues arising from the integration or harmo-
nization implementation “on the ground.” These four essays explore convergence and
divergence among roughly co-equal governance systems. These issues ofhorizontal har-
monization, that is, of harmonization among communities of equals, are particularly
important in the fields of public international law and the regulation of private eco-
nomic activity. One essay analyzes the transnational dispute resolution system being de-
veloped by the members of the Southern Cone Common Market—Brazil, Argentina,
Uruguay and Paraguay. It contrasts the two fundamentally different views of the form
that integration ought to following the region, one based on the primacy of the mem-
ber states and the other based on the creation of autonomous institutions at the supra-
national level. It then suggests some of the ways in which the current system may still
bring some progress to regional integration.A second essay explores the development of
a unitary set of norms for conceptualizing culture and the ownership of the artifacts
produced by culture where states attempt to protect cultural artifacts from international
markets for cultural treasures. A third essay examines several little known cases from
the European Union in the area of competition law, and traces the convergence of na-
tional law around a particular antitrust norm: the abuse of a dominant position result-
ing from the refusal to supply spare parts. The author argues that E.U. law on this point
differs significantly from the position ofU.S. law, and warns against convergence at the
international level around this particular antitrust “principle.” A fourth essay also ex-
amines governmental efforts to regulate the amalgamation of economic power in the
United States and the European Union.
Part V—Communication and the Boundaries of Harmonization—wrestles with is-
sues oflimitation and divergence. Two essays focus on the limitations ofharmonization
projects, especially as it concerns horizontal harmonization. One essay examines the
issue of communication in the context of harmonization and serves to demonstrate
both the power of harmonization and its difficulties. It suggests the difficulties of inte-
gration even among systems sharing a similar set of basic norms. The lessons of this
essay have broad application, as well, to the problems illustrated in the essays that fol-
low. The other essay considers the difficulties of harmonization even within systems
that might embrace integration. The essay illustrates how the particular method ofrule
making in common law countries, and England in particular, tend to make uniformity,
or even conformity to single standards, difficult. Methods of communicating law can
thus have a profound effect on shape ofintegration.
Part VI—Beyond the Boundaries of Harmonization: Cycles of Convergence and Resis-
tance—considers divergence and resistance to globalization and its attendant incentives
to harmonization. The first essay introduces the reader to an aspect ofIslam’s encounter
with globalization. It examines the ways in which nation-states with Muslim majority
populations attempt to interact with each other and with non-Muslim states without
losing what they might consider to be the essence oftheir national or religious character.
This interaction occurs in the context of attempts at horizontal harmonization, where
convergence is not the goal, and where integration is impossible, but where something
more than mere communication between systems is necessary. There is also a strong ele-
ment ofresistance in the context ofIslam’s encounter with non-Muslim and secular sys-
tems of norm making. The second essay focuses on the interrelationship among global-
ization, harmonization, and resistance within the European Union. It suggests that
harmonization is best understood as a dynamic process in an ongoing contest among
and within autonomous political and economic communities seeking to preserve their
distinctive characteristics while creating means for facilitating interaction between them.
Together, the essays suggest the ambitions and limitations ofglobalization as a norm
system. They also serve to illustrate the complexities of harmonization as a methodol-
ogy of convergence. At a fundamental level, all of the essays touch on issues of control
and on the relationship between law and the state. Today it is possible to construct
binding legal systems without the mediation of states or even recourse to state power.
This is threatening to the old order, which senses a diminution of its power as its mo-
nopoly over lawmaking is split up among other actors. And rightly so: the essays point
to the several avenues by which it may be increasingly realistic to understand law and
legal systems as rules distinguishable from the political state. The ramifications of this
single change will remake power relationships well into this new century.
The materials in this book are designed to reach a broad audience. There are materi-
als here ofinterest to those beginning their study ofharmonization as well as to special-
ists in law and politics. The materials are meant to be accessible to all readers. There has
been an attempt to avoid jargon or language peculiar to the initiates of an academic
field ofstudy. The subject matter is meant to cover a broad area as well. There is a focus
on legal systems, to be sure, from the most successful national and transnational sys-
tems ofharmonization—the United States and the European Union—to those ofLatin
America and the Middle East. But the materials also consider globalization in the con-
text ofindigenous peoples’ rights, culture, and religion.
Because most ofthe contributors are lawyers, there is a special emphasis on the issue
of harmonization within the context of law. As a consequence, the materials are partic-
ularly appropriate for law students enrolled in Comparative or International Law
courses, or in seminar courses in either field of law, with a more detailed framework
within which to consider the complexities ofthe legal implications ofglobalization. The
materials could also be useful in courses on Trade Law. The goals ofthe materials are to
provide students with the analytical foundation for understanding issues ofharmoniza-
tion, and with contextual applications of these analytical foundations. The focus is not
merely on the familiar—that is on issues affecting the United States and Europe. The
materials also are meant to introduce students to the ways in which legal harmonization
is approached in often ignored areas of the world—places like Latin America, Africa
and the dar al Islam(that is, what some might understand as the “abode of Islam” or
the “Muslim nation” and generally understood as including those states with majority
Muslim populations).
The materials can also be profitably used in undergraduate political science courses.
The essays are especially useful for adding context to courses on national political sys-
tems or for courses on international political systems or globalism and political theory.
While the essays are related, each can be assigned independently of the others. Ad-
vanced courses in the sociology oflaw, or Islamic Law, might also find some ofthe ma-
terials useful.
Lastly, the materials in the book also can serve as a set of basic readings in advanced
seminar, research or paper oriented courses covering the field of legal harmonization.
The initial essays can be used to provide the reader with a conceptual and analytical
framework for examining legal harmonization. The other contributions provide con-
textual examination of the most significant issues in the field. Together, the contribu-
tions provide a diverse examination of theory and context rich enough to support a
stand alone advanced course.
My hope is that the study of some or all of the issues raised in these materials will
provide students, as well as other readers, with a broader perspective on globalization
and harmonization. Globalization is not a single and invariable set of norms, but in-
stead represents a tendency to seek to universalize behavioral norms that have taken a
variety offorms over the last several millennia. The current form ofglobalization, based
on private economic transactions, political democracy, and basic rules limiting the
power of governments and others over individuals—human rights—is neither unique
nor necessarily transcendent. Whether this form of globalization has any lasting power
remains to be seen.
Like globalization, harmonization does not take on a single form, nor is it an in-
evitable consequence of globalization. Harmonization is how we understand the
processes invoked to integrate rules of behavior. These materials provide the basis for
understanding the limited number ofpatterns for developing these processes. The push
for integration appears natural enough—two or more communities seeking to interact
need a common language of communication, perhaps common practices or common
systems ofrules. Integration in this context requires rules, and rules require law making
of some kind. Legal harmonization thus forms the basis of the materials provided in
this volume. Each contribution adds a layer to the understanding of the benefits and
limitations of legal harmonization and an appreciation for differences in governance in
a world that is so focused on standardizing globalization.
I will close this preface with thanks to all who have helped this project along. Penn-
sylvania State University has been gracious with its support of this project. The editors
at Carolina Academic Press have been exceedingly patient. My colleagues at the Coali-
tion for Peace &Ethics performed yeoman service as sounding boards for much of the
material that I authored. I want to extend particular thanks to the students enrolled in
my courses in Comparative Corporate Law and Comparative Constitutional Law. They
willingly served as test subects for the material. Their collective feedback and insights
proved invaluable. I extend special thanks to my student research assistants at Pennsyl-
vania State University: Jill Hammill, Chris Moffitt, Frank J. Lacquaniti, Katie Maxwell,
Barzilai Axelrod, and Pedro Hernandez.
It is sometimes easy to fall into jargon and obscurity when dealing with the complex-
ities of globalization and integration. It is also easy to indulge fads and popularly em-
braced analytical perspectives. But all of the contributors to this work have striven to
make the materials accessible to as wide an audience as possible, and all have sought to
avoid faddism of any sort.
Larry Catá Backer
State College, Pennsylvania
April 20, 2007
The Contributors
Emily Atwood received her LL.M. in Child Law from Loyola University of Chicago.
She has published work in the area of harmonization and is currently working on issues
of the protection of children. Ms. Atwood served as Law Clerk to Hon. Howard H.
Kestin, P.J.A.D. of the Superior Court of New Jersey, Appellate Division. She currently
works with private global advocacy and human rights groups based in Chicago, Illinois.
Larry Catá Backeris Professor of Law at Pennsylvania State University, Dickinson
School of Law. He previously served as Executive Director of the Comparative and In-
ternational Law Center and Professor of Law at the University of Tulsa College of Law.
Professor Backer has written on issues of international and comparative law, as well as
on the constitutional law of the European Union and has provided testimony to the
U.K. House of Commons on the European Constitutional Treaty. He has written a case-
book: Comparative Corporate Law: U.S.,European Union,China and Japan (2002). He is
a member of the American Law Institute, the European Corporate Governance Insti-
tute, and a founding director of the Coalition for Peace and Ethics, a non-profit organi-
zation promoting appropriate behavior among public, private, economic and religious
institutions.
Welber Barral is Professor of International Economic Law at the Universidade Fed-
eral de Santa Catarina Centro de Ciencias Jurídicas and has been a Visiting Professorial
Fellow at the Georgetown University Law Center He has also served as a visiting profes-
sor at the Universidad de Valencia (Spain), at Vytautas Magnus Universitas (Lithuania),
and at Penn State Dickinson School of Law. He is also on the roster of panelists for
MERCOSUR and for WTO. Professor Barral has written widely on international trade
issues and is a leading expert on the effects of the WTO on developing states. He has
written several books on issues of international trade and development, the latest of
which is Tribunais Internacionais: Mecanismos contemporaneos de solução de controvér-
sias (2004).
Gunnar Beckis a lecturer in E.U. law and legal theory at the School of Oriental
African Studies in the University of London, and a legal adviser to the European
Scrutiny Committee at the House of Commons. He was formerly a part-time lecturer in
E.U. law at the London School of Economics, where he still teaches occasionally. He is a
qualified barrister with full rights of audience in the higher English courts and holds a
doctorate in political philosophy from the University of Oxford, which he completed
under the supervision ofthe late Professor Sir Isaiah Berlin. He previously taught polit-
ical and moral philosophy at Oxford and worked for the E.U. and Competition depart-
ment ofthe law firm Herbert Smith.
Bruce Carolan is Head of the School of Social Sciences and Legal Studies of the
Dublin Institute of Technology, where he teaches and researches on European Union
and WTO law and the law of Competition. He is a past president of the Irish Associa-
tion of Law Teachers. He also is a Fellow of the Center for Comparative and Interna-
tional Law ofthe University ofTulsa School of Law, and has been a visiting professor at
the University of Florida Warrington College of Business and Stetson University College
of Law. He has taught the Law of the European Union, Competition Law, Trade Law
and International Business Transactions in Ireland, the U.S., the U.K., Argentina, Bel-
gium and Geneva.
Vivian Grosswald Curranis Professor ofLaw at the University ofPittsburgh. She is a
member ofthe American Law Institute, an associate member ofthe International Acad-
emy of Comparative Law, and during 2004–06 served as the United States member of
the Claims Committee of Austria’s General Settlement Fund relating to Nazi-era prop-
erty expropriations. She has served as Secretary of the American Society of Compara-
tive Law; chair of the AALS section on comparative law; and book review editor of the
American Journal ofComparative Law. She is the author ofLearning French through the
Law: a French/English Comparative Treatment of Terms in a Legal Context(1996); Com-
parative Law: An Introduction(2002); and is the translator from the German of Bern-
hard Grossfeld, Core Questions of Comparative Law(2005). She is a past director of the
Univ. ofPittsburgh’s LL.M. program and founded and directs its Languages for Lawyers
program. She has lectured and taught in the area of comparative law and theory in the
United States, Germany, France and the Netherlands.
Beth Farmeris Professor of Law at Pennsylvania State University, Dickinson School
of Law. She is a former state antitrust law enforcement attorney, is actively engaged in
researching and writing about the application of antitrust and trade regulation law
within the federal system of the United States and within the international community.
She is the chair of the American Association of Law School’s (AALS) section of An-
titrust Law & Economic Regulation. Professor Farmer serves as a member of the advi-
sory board ofthe American Antitrust Institute; as chair ofthe AALS Liaison Committee
of the ABA Antitrust Section; and as chair of the Professional Education Committee of
the ABA Administrative Law & Regulatory Practice Section. Professor Farmer’s teaching
and research interests also include criminal law, with emphasis both on white-collar
crime and on the impact of the criminal justice system on women.
Seema Lal is in private practice in New York. She received her LL.M. in Intellectual
Property from the Cardozo University School of Law, and her J.D. from Pennsylvania
State University. She is currently in private practice in New York and has worked exten-
sively in the publishing industry and does research in the intellectual property field.
Jo M.Pasqualucciis Professor ofLaw at the University of South Dakota. She earned an
S.J.D. in International and Comparative Law from the George Washington University Law
School, and she has worked with the Secretariat of the Inter-American Court of Human
Rights while on a Fulbright in Costa Rica. Her book, The Practice and Procedure of the
Inter-American Court of Human Rights, was published in 2003 by Cambridge University
Press.She has also published several law journal articles on international human rights law.
Christopher Stuart is an attorney employed by the United States Government. He
currently works on issues pertaining to Islamic jurisprudence and war crimes. He re-
ceived his J.D. with a Certificate in International, Comparative and Foreign Law from
Pennsylvania State University Dickinson School of Law. The opinions expressed in his
article are his own.
Melissa L. Tatumis nationally known for her work in jurisdiction and procedure
(particularly with respect to tribal courts) and is developing a national reputation in the
field of group rights. She served on a joint federal/state/tribal working group on cross-
jurisdictional enforcement of protection orders and co-authored a model tribal code for
enforcement of foreign protection orders. Professor Tatum speaks regularly at confer-
ences across the country on the topic of tribal jurisdiction, and has served as a faculty
member at the National Tribal Judicial Center. She has served as a judge on the South-
west Intertribal Court of Appeals and developed a system for indexing and publishing
the tribal court opinions of the Muscogee (Creek) Nation. She has served as a Co-Direc-
tor of the Native American Law Center at the University of Tulsa, where she has also
served as Director ofthe LL.M. Program in American Indian and Indigenous Law.
Takis Tridimas, LL.B. (Athens), LL.M, Ph.D. (Cantab); Sir John Lubbock Professor
of Banking Law and Head of the International Financial Law Unit of the Centre for
Commercial Law Studies, Queen Mary, University of London. Professor Tridimas is a
Barrister ofthe Middle Temple and Advocate, Bar ofAthens. He is Professor at the Col-
lege of Europe, Bruges. He was senior legal adviser to the E.U. Presidency (2003) and
Chairman of the Committee set up by the E.U. Council of Ministers to draft the Treaty
ofAccession 2003 by which ten new Member States joined the EU. His research interests
include all aspects of E.U. law, including securities regulation, financial services law,
company law, internal market, constitutional and administrative law, and the law of
remedies, internal market and comparative law. He has published extensively in the
fields of financial services and E.U. law. His publications include: Tridimas and Nebbia
(eds.): E.U. Law for the 21st Century: Rethinking the New Legal Order, Hart Publishing,
Volumes I & II, 2004; Tridimas: The General Principles of E..C Law, Oxford University
Press, 1999; He is the co-editor of the Yearbook of European Law, a member of the Edi-
torial Board of The Company Lawyer, and a member of the Advisory Board of the Eu-
ropean Financial Services Law Review.
The essays in this book highlight the most important ways in which domestic, international, public, and private legal systems interact with each other. The initial essays provide a theoretical overview of the study of legal harmonization - that is, of the nature and character of communication, accommodation, amalgamation, or resistance among legal systems. These interactions occur within horizontal relationships, between political institutions operating at the same level of authority. Vertical relationships between political institutions whose relationships are hierarchical have given rise to different patterns of interaction. New legal orders are being created through the adoption of international legal instruments that may reach nation-states, private entities, and individuals. Each has the potential for significantly affecting the sources of authority over public and private actors. Other essays illustrate the many ways in which communication between legal systems produce very real, if very different, effects across the world. A descriptive Preface, table of contents, contributor list and table of cases is included for download. The book may be ordered through the publisher at this site.
Contents
Preface xiii
Acknowledgments xxi
The Contributors xxiii
Table of Cases xxvii
Table of Legislation xxxv
1 Harmonizing Law in an Era of Globalization—Convergence,Divergence,
and Resistance:An Introduction and Analysis 3
Larry Catá Backer
Reference List 27
Cases 33
2 The Harmonization ofHuman Rights Laws:Guaranteeing the Plurality
ofIndividual Rights 35
Jo M.Pasqualucci
I. Introduction 35
II. Vertical Harmonization of Human Rights Laws resulting from
Supranational Enforcement Organs 37
A. Interpretation of Substantive Treaty Rights and Regulations 37
B. Advisory Opinions and General Comments 38
III. Horizontal Inter-system Harmonization (Cross-Fertilization) 39
IV. Tension Between Universal Harmonization of Human Rights and Cultural
Pluralism 40
V. Impediments to the Harmonization of Human Rights Law 41
A. State Resistance to Harmonization 42
1. Resistance to the Ratification of Human Rights Treaties 42
2. Ratification with Reservations or Understandings 42
3. Failure to Accept the Jurisdiction of Supranational Tribunals or
Organs of Protection 43
4. Failure to Execute Decisions of Supranational Tribunals 43
B. Doctrinal Impediments to Harmonization ofHuman Rights Laws 44
1. Subsidiarity of International Enforcement Organs Limits
Harmonization 45
2. Margin of Appreciation Limits Harmonization 46
C. Multiplicity of International Fora 46
VI. State Capitulation and Compliance 47
VII.Proposals to Increase Harmonization ofHuman Rights Laws 49
IX. Conclusion 51
Reference List 51
Cases 53
3 In Pursuit of Restorative Justice:The South African Truth & Reconciliation
Commission in Light ofthe Rome Statute for the International
Criminal Court 55
Emily R.Atwood
I. Introduction 55
II. South Africa’s Truth & Reconciliation Commission (TRC) 57
A. Brie fHistory of South Africa 57
B. Establishment ofthe South African Truth & Reconciliation Commission 60
C. The Effectiveness of the TRC 64
III. The Rome Statute of the International Criminal Court (ICC) 67
A. Development of an International Criminal Court 67
B. The International Criminal Court Arrives 70
C. Role of the ICC in Domestic Conflicts 71
IV. Lessons from South Africa: The Need for Truth and Reconciliation within
the International Criminal Court 74
Reference List 76
Statutes 79
Cases 80
4 Tribal Courts:The Battle to Earn Respect Without Sacrificing Culture and
Tradition 81
Melissa L.Tatum
I. Tribal Courts—Who They Are and What They Do 81
II. Where Tribal Courts Fit 84
III. Efforts to Obtain Internal and External Legitimacy 91
IV. Education 92
V. Tribal Common Law 93
VI. Traditional Dispute Resolution Mechanisms 94
VII.Conclusion 95
Reference List 96
Cases 97
5 Black,White,and Shades of Grey: Horizontality of Directives Revisited 99
Takis Tridimas
I. The Distinction Between Vertical and Horizontal Effect 100
II. Direct Effect and Reviewability of Member State Discretion 102
III. Directives and Correlative Obligations on Individuals 104
IV. Correlative Obligations in Proceedings Against Public Authorities 105
A. The Case Law of the Court of Justice 105
B. The Limits of Correlative Obligations 107
V. Collateral Challenge in Civil Proceedings 110
A. The Judgment in CIA Security and Its Aftermath 111
B. Reliance on Directives in Contractual Proceedings 113
VI. Obligations on Individuals Under Marleasing 116
A. The Uncertainties of Marleasing 116
B. Interpreting in a Vacuum 120
VII.Conclusion 121
Reference List 122
Cases 123
6 Dispute Settlement and Legal Harmonization in Mercosur 129
Welber Barral
I. Introduction 129
II. Mercosur: The Current Situation 130
III. “Institutionalists” and “Pragmatists” Vie for Control 131
IV. The Current Dispute Settlement System 134
V. Innovations in the Protocol of Olivos 136
VI. Pending Problems 137
VII.Conclusion 139
Reference List 140
7 The Dialogue of Destruction: Globalizing Cultural Property Protection
Law to Meet the Challenges of Today 141
Seema Lal
I. Introduction 141
II. Defining Culture 142
III. Defining Cultural Property 143
IV. Why Protect Cultural Property? 144
V. Cultural Nationalism Contra Cultural Internationalism 144
A. Cultural Nationalism and Its Critique 144
B. Cultural Internationalism and Its Deficiencies 146
VI. Current State of International Law Protecting Cultural Property 147
A. Customary and Conventional International Law 148
B. Wartime Protection 149
1. Hague Convention 149
C. Peacetime Protections 151
1. UNESCO Convention 151
2. World Heritage Convention 152
3. UNIDROIT Convention 153
VII.Application of the Hague Convention in Cases ofInternal Conflict:
The Example of Yugoslavia 155
A. The Military Campaigns and Property Destrution in Yugoslavia 156
B. International Protection in Internal Conflicts 157
1. Article 19 157
2. The Law of Internal Conflicts 157
3. Protection under the International Framework in Yugoslavia 158
C. Changing the Hague Convention to Better Protect Cultural Property
Affected by Internal Conflict 158
VIII. Toward Alternative Frameworks: Protection of Heritage and Individual
Responsibility for Destruction of Cultural Objects 160
Reference List 163
Treaties 165
8 The Pitfalls of Harmonization in Antitrust Law 167
Bruce Carolan
I. Introduction 167
II. Overview of Article 82, E.C. Treaty 170
III. Refusal to Supply Spare Parts and Abuse ofa Dominant Position; The
Hugin Case: Introduction 171
A. Commission Decision 171
1. Facts 172
2. Commission Legal Assessment 173
B. The Advocate General’s Recommendation 175
1. Dominance 175
2. Abuse of Dominance 176
3. Effect on Trade between Member States 177
C. Judgment of the European Court of Justice 178
1. Dominant Position 178
2. Abuse of Dominance 178
3. Effect on Trade between Member States 179
IV. The Brass Band Case 181
A. Introduction 181
B. Facts 181
C. Dominant Position 181
D. Abuse of a Dominant Position 182
V. Conclusion 183
Reference List 184
Cases 184
9 Global Competition Implications for Enforcement 185
Beth Farmer
I. Introduction 185
II. Federalism—U.S. Antitrust 186
III. Costs and Benefits of Multiple Enforcement 189
IV. Factors One and Two: Recognizing Divergent Norms and Policies 191
V. Development of Antitrust Regimes 194
VI. Comparative Competition Law 194
VII.Costs of Multiple Enforcement 195
VIII. Reasons for Different Schemes 195
IX. Competition Law Goals 196
X. Extraterritorial Enforcement 200
XI. Conflicts in Enforcement 200
XII.Summary 201
XIII. Standard for Evaluation of Solution 202
A. Supranational Agency: WTO Model 202
B. Uniform Statute 203
C. Consultative Process 203
XIV. Conclusions 204
Reference List 204
Cases 206
Treaties and Statutes 208
Appendix A 208
Appendix B 210
Appendix C 211
Framework for Cooperation 211
I. Confidentiality 211
II. Procedures Involving the Merging Parties 212
III. Conduct of Joint Investigation 213
A. Strategic Planning 213
B. Document Production 213
C. Witness Evidence/Experts 214
IV. Settlement Discussions 214
V. Statements to the Press 215
Appendix D. Statute of Monopolies 215
10 The Pursuit of Law 217
Vivian Grosswald Curran
I. Introduction 217
II. Between Legal Theory’s Scylla and Charybdis 219
III. The Chinese Head Tax Case 223
IV. The Hart-Radbruch Debate’s Original Import 227
V. Why the Debate Matters Today 230
VI. The Telling Story of French and German Courts During Nazism and
Fascism 232
Conclusion 235
Reference List 236
Case 239
Statutes 240
11 Legal Certainty,the Common Law Tradition,Resistance to Harmonization
and Convergence in the European Community Legal Order 241
Gunnar Beck
I. Introduction 241
II. The Hierarchy ofAuthorities 244
III. Defining a Precedent—The Difficulty of Distinguishing between
Ratio and Obiter Dictum 246
IV. The Possibility of Distinction and the Danger of Extinction (of Precedents) 249
V. Judicial Decision-Making in the Absence of Precedents 251
VI. The Judicialization of Decision-Making—Judges and the Ordinary
Meaning ofWords in Statutes and Contractual Agreements 252
VII.Judicial Law-Making under the Common Law 257
VIII. The Application of E.C. Law under the Common Law 259
A. The Acte Clair Principle 261
B. Precedent 264
C. The Procedural Prerogative 269
D. Judicial Decisions between Ignorance and Oversight 270
E. Cost and Delay 272
IX. Conclusion 273
Reference List 275
Cases 276
12 From “Mother of the World”to the “Third World”and Back Again:
The Harmonization Cycle Between Islam and the Global Economy 279
Christopher Stuart
I. Introduction 279
II. Relevant Patterns ofHarmonization and Divergence 281
III. Islamic Law Primer 282
A. A Short Political History ofIslam 283
B. Sources ofIslamic Law 284
C. Schools of Islamic Law 285
IV. Traditional Law Period 285
A. Islamic Sales Law 286
B. Roman Law and the International Legal System 287
C. Convergence among Classical Legal Systems 288
V. National Law Period 289
A. Islamic Law 290
1. “Islamic Investment Law” 1700–1945 290
2. Corporate Governance and Capital Markets 291
B. The International System Outside the Dar al-Islam 292
1. Investment Banking 292
2. Corporate Governance 292
C. The Relationship between Internationalist Regimes and the
Dar al-Islam 293
1. Disparity between Islam and the Rest ofthe World 293
2. The Islamic World “Falls Behind” 294
VI. Modern Legal Period 295
A. Islamic Law 296
1. Islamic Banking 296
2. The Example ofSaudi Commercial Law 298
3. Gulf Cooperation Council 299
B. International System 300
C. Nature of Interactions between the West
and the Dar al-Islam 301
VII.Conclusion 302
VIII. Postscript 303
Reference List 304
13 Harmonization,Divergence,and Resistance:The European Union and
the Dynamics of Multilayered Governance 309
Larry Catá Backer
Introduction 309
Reference List 341
Cases 346
Treaties and Statutes 347
14 Postscript 349
Larry Catá Backer
Reference List 351
Index 353
Preface
Globalization and harmonization are important buzzwords in law, economics, poli-
tics and public policy. Like any buzzword, both terms tend to take on specific meanings
to suit the purposes ofthose who use them.
Fifty years ago, globalization could have been understood to mean the emerging
Marxist-Leninist world order. Many believed that humanity was inevitably progressing
away from capitalism and autonomous nation-states to a global community based on
principles of Marxism which would serve as the common language of political and so-
cial organization in the world. Five hundred years ago, and in certain parts of the con-
temporary world, many believed that globalization would come in the form of the in-
evitable earthly triumph ofone or another singular, true and universal religious system.
This form of globalization would produce a common language of social, political, and
economic organization based on a common normative structure provided by the struc-
tural and behavioral framework ofthe dominating religion.
Today, in much ofthe world, globalization is commonly conceived ofas the emerging
system ofprivate interactions structured, for the most part, through economic relation-
ships. Within this framework, the value of particular expressions of social and political
action is to be judged on the basis ofthe way in which each might contribute to the opti-
mization offree, transparent and fair markets. For this purpose, for example, democra-
tic political systems might be thought ‘better’ than other systems. Likewise, ‘free market’
economic norms might be judged better at optimizing private market functioning than
systems based on ‘command economy’ principles. This form of globalization, like the
others described above, is believed to transcend the more limited autonomous self-con-
tained political, economic, social and religious communities. The nation-state, in partic-
ular, is meant to serve as a cog in the great wheel of global markets, devoting its law-
making power to enhancing the transparency, fairness and efficiency ofthose markets.
One can see, then, that globalization can be understood as both a descriptive and a
normative concept. At its most general, globalization is the term used to describe the
communication, interaction, migration, and intercourse between autonomous commu-
nities. At its most specific, globalization is the term used to describe particular forms of
interaction prevalent in any particular historical epoch. As a normative concept, global-
ization is the name that is given to a particular ideology of transnational interactions
among and between members ofdifferent political communities.
Harmonization is sometimes used as a synonym for globalization. But harmoniza-
tion is something quite different. Harmonization is a consequential concept. It sug-
gests a course—or the method—for any of the many forms of globalization, rather
than the normative basis of globalization itself. If globalization is the objective—the
substance—of universalism, then harmonization focuses on the means of attaining
those substantive ends. At its most basic, harmonization suggests the search for com-
monalities. This may mean little more than finding a common language through
which autonomous communities may communicate. The spread of English as a
‘global’ language is a good example of this form of harmonization as communication.
Standardization of products—from light bulbs, to time, to weights and measures—is
another good example ofharmonization.
But harmonization usually suggests a search for common behavior rules. Harmoniza-
tion as integration can take many forms, from voluntary and non-coercive, to mandatory
and specific.Much modern integration is implemented through law making—as political
communities today tend to hold most of the power to coerce behavior from their mem-
bers. In the United States, the creation ofan idealized form ofcorporate governance, the
Model Business Corporation Act, by a non-governmental organization, the American Bar
Association, has served as an influential model for state law and, as a consequence, as an
important vehicle for the harmonization of corporate law on a voluntary and non-coer-
cive basis. In the European Union (the “E.U.”), the adoption of framework legislation—
called “directives” in the E.U. treaty system are particularly important. Directives are laws
directed to the Member States of the European Union that obligate each of the Member
States to amend its own domestic law to achieve the objectives specified in the directive.
Where the directive is specific, transposition ofthe directive to domestic law may require
adoption of the directive verbatim; otherwise, Member States may have substantial flexi-
bility. But legal harmonization is not necessarily dependant on governmental action.
Adoption of common contractual terms within an industry also has been as effective in
integrating practice on a global basis. For example, common terms and understandings
used in letters ofcredit were developed through agreement by the major banks that con-
trolled the majority ofthose transactions and are now enforced by contract.
For all of their power, neither globalization, as a set of influential conduct norms,
nor harmonization, as a collection ofmethodologies ofintegration, have ever been able
to assert dominance over all individuals and all communities. As a historical matter,
every form of globalization, and every attempt to integrate behavior within a single set
of norms, has met resistance. World history does not reveal a time in which everyone
has embraced one single set of norms. While technology has made it more likely that
some form of universal system could be implemented, technology has yet to find a way
to bend the will of individuals or communities to affirmatively embrace any set of be-
havior norms either would rather reject.
Not every autonomous community encountering any given framework for globaliza-
tion would invariably choose to embrace those universal behavior norms, irrespective
ofthe manner in which the community is confronted by that framework. Not every au-
tonomous community reacts positively to inducements to modify rules and law to im-
plement (or induce) greater integration with global standards. Such inducements can as
easily be interpreted as attempts to shift the power to govern from within a political
community to groups outside of, and not subject to the control of, the members of the
political community now subject to its rule making power.
For nation-states recently emerging from out of systems of colonial control, the parallels
may be too striking to ignore without difficulty.For example, Cuba under the leadership of
Fidel Castro from 1959 into this century has refused to conform to the economic behavior
model developed through global economic institutions like the International Monetary
Fund and the World Bank. The Cuban leadership grounded this refusal on a rejection of
the normative basis of those rules. In any case, the Cuban state apparatus has refused to
surrender its power to determine its own economic course to another entity. The difficulty
may blind nation-states to differences between colonial systems of control and participa-
tion in global networks ofprivate relationships bounded by common rules ofbehavior. Of
course, resisting nation-states may have other motives as well. Thus, the Cuban leadership
might have chosen to resist internalizing the narrative framework of economic globaliza-
tion based on liberalized trade regimes as a matter ofpolitical choice. They have sought to
act as agents ofa competing system ofglobalization—a Marxist-Leninist global order.
Institutional religion today also plays a role, as both a facilitator ofand source ofresis-
tance to, the dominant ideology oftransnational interactions understood as globalization
as well as to the means embraced to attain globalization’s aims. Where a particular insti-
tutional religion achieves hegemony within a political community, the normative frame-
work ofthat religion can serve as a competing ideology ofglobalization. In this sense, re-
ligion might act as a source ofresistance to other globalization systems. Where particular
institutional religions are actors within a political community, each can seek to influence
the form in which globalization is understood or implemented. For example, the institu-
tional Catholic Church has played a very active role in seeking to expand a “social justice”
framework for economic globalization. On the other hand, the normative framework of
institutional religion can play a decisive role in harmonizing practices among cultures.
Institutional Islam, for example, might serve a critical role in naturalizing global com-
mercial norms into majority Muslim states by providing a system of translation and
transposition into the traditional normative and legal frameworks ofthose states.
In the absence of consensus on the value of harmonization, the appropriate goals of
convergence, or basis on which either is to be effected, the world community simultane-
ously experiences both acute resistance to one or another form of of convergence and
strong efforts to erect ever more effective frameworks for convergence. The essays in
this book highlight the ways in which legal systems interact with others, and the reasons
those interactions are important in an increasingly global social order. The initial essays
focus more generally on theoretical issues in legal harmonization—that is, they focus
on the nature and character of communication between legal systems and their effects.
The essays that follow are intended to illustrate the many ways in which communication
between legal systems have been producing very real, ifvery different, effects across the
world. These essays range over a wide variety ofissues relating to harmonization.
All of the essays touch on communication—the great fundamental problem of har-
monization. Communication, in a variety of forms, presents problems that loom large
even in the context of the development of what appear to be universal norms. The es-
says suggest the ways communicative difficulties can affect harmonization and serve as
an organizing principle of resistance. Each essay thus serves as an illustration of the
many paths taken by harmonization in the context ofthe current norm system ofglob-
alization. The essays show that globalization can produce powerful incentives to harmo-
nize law, either voluntarily or coercively. But they also demonstrate that globalization
produces great inducements to divergence and resistance.
The materials are divided in six parts. Part I consists of an introductory essay that
provides a general framework for understanding issues of harmonization, convergence
and resistance.This essay provides a foundation for approaching issues ofharmonization
in context ofglobalization. It suggests that harmonization is particularly powerful in the
context ofglobal economic activity, and that the focus on economic activity has particu-
larly powerful effects on reshaping the divisions between public and private spheres of
regulation. Corporations, bridging public and private spheres ofactivity, serve as a pow-
erful illustration ofharmonization within the normative framework provided by global-
ization. It ends with a consideration ofthe other essays in the collection in the context of
the framework developed for understanding globalization and harmonization.
The essays that follow are arranged in broad thematic sections that each focus on dif-
ferent aspects ofharmonization, its limitations, and the nature ofopposition to harmo-
nization projects. The essays each shed light on an aspect of the dynamic and some-
times elusive character of harmonization in the many particular areas of regulation in
which it seems to apply.
Part II—Introducing Issues of Horizontal and Vertical Harmonization: Convergence
and Divergence in Global Human Rights Regimes—includes two essays that consider
convergence and divergence of norms in the increasingly unified global ordering of
norms protecting individual and communal rights. The emerging unified systems of
human rights well evidence both the general problems of harmonization among na-
tion-states, and the specific problems of harmonizing rules of individual rights. One
essay suggests the ways in which the harmonization of international human rights law
fosters personal distinctions and protects individual diversity within a framework ofre-
spect for the rights of others. The other looks to Africa to explore the intersection be-
tween national sovereignty and emerging international systems of behavior control,
where states attempt to conform the rules for Truth and Reconciliation Commissions to
the emerging standards under the treaty establishing the International Criminal Court.
Part III—Convergence and Integration in Federal and Quasi-Federal Systems—intro-
duces another important and difficult aspect of harmonization. The two essays in this
section consider convergence and integration in governance systems arranged
vertically—federal and quasi-federal systems. One essay focuses specifically on the dif-
ficulties of harmonization among the three distinct governmental and court systems of
the United States—federal, state, and tribal. It explores the current body ofrules defin-
ing the place of the tribal courts in the federal system and the resulting pressures on
tribal courts to look and act the same as state and federal courts. The other essay focuses
on the functioning of framework legislation, directives, in the European Union. This
essay looks at the extent to which directives issued by the European Community institu-
tions, as harmonization instruments, may give rise to obligations against individuals.
Part IV—Convergence and Divergence in Public and Private International Legal
Regimes—consists of explorations into issues arising from the integration or harmo-
nization implementation “on the ground.” These four essays explore convergence and
divergence among roughly co-equal governance systems. These issues ofhorizontal har-
monization, that is, of harmonization among communities of equals, are particularly
important in the fields of public international law and the regulation of private eco-
nomic activity. One essay analyzes the transnational dispute resolution system being de-
veloped by the members of the Southern Cone Common Market—Brazil, Argentina,
Uruguay and Paraguay. It contrasts the two fundamentally different views of the form
that integration ought to following the region, one based on the primacy of the mem-
ber states and the other based on the creation of autonomous institutions at the supra-
national level. It then suggests some of the ways in which the current system may still
bring some progress to regional integration.A second essay explores the development of
a unitary set of norms for conceptualizing culture and the ownership of the artifacts
produced by culture where states attempt to protect cultural artifacts from international
markets for cultural treasures. A third essay examines several little known cases from
the European Union in the area of competition law, and traces the convergence of na-
tional law around a particular antitrust norm: the abuse of a dominant position result-
ing from the refusal to supply spare parts. The author argues that E.U. law on this point
differs significantly from the position ofU.S. law, and warns against convergence at the
international level around this particular antitrust “principle.” A fourth essay also ex-
amines governmental efforts to regulate the amalgamation of economic power in the
United States and the European Union.
Part V—Communication and the Boundaries of Harmonization—wrestles with is-
sues oflimitation and divergence. Two essays focus on the limitations ofharmonization
projects, especially as it concerns horizontal harmonization. One essay examines the
issue of communication in the context of harmonization and serves to demonstrate
both the power of harmonization and its difficulties. It suggests the difficulties of inte-
gration even among systems sharing a similar set of basic norms. The lessons of this
essay have broad application, as well, to the problems illustrated in the essays that fol-
low. The other essay considers the difficulties of harmonization even within systems
that might embrace integration. The essay illustrates how the particular method ofrule
making in common law countries, and England in particular, tend to make uniformity,
or even conformity to single standards, difficult. Methods of communicating law can
thus have a profound effect on shape ofintegration.
Part VI—Beyond the Boundaries of Harmonization: Cycles of Convergence and Resis-
tance—considers divergence and resistance to globalization and its attendant incentives
to harmonization. The first essay introduces the reader to an aspect ofIslam’s encounter
with globalization. It examines the ways in which nation-states with Muslim majority
populations attempt to interact with each other and with non-Muslim states without
losing what they might consider to be the essence oftheir national or religious character.
This interaction occurs in the context of attempts at horizontal harmonization, where
convergence is not the goal, and where integration is impossible, but where something
more than mere communication between systems is necessary. There is also a strong ele-
ment ofresistance in the context ofIslam’s encounter with non-Muslim and secular sys-
tems of norm making. The second essay focuses on the interrelationship among global-
ization, harmonization, and resistance within the European Union. It suggests that
harmonization is best understood as a dynamic process in an ongoing contest among
and within autonomous political and economic communities seeking to preserve their
distinctive characteristics while creating means for facilitating interaction between them.
Together, the essays suggest the ambitions and limitations ofglobalization as a norm
system. They also serve to illustrate the complexities of harmonization as a methodol-
ogy of convergence. At a fundamental level, all of the essays touch on issues of control
and on the relationship between law and the state. Today it is possible to construct
binding legal systems without the mediation of states or even recourse to state power.
This is threatening to the old order, which senses a diminution of its power as its mo-
nopoly over lawmaking is split up among other actors. And rightly so: the essays point
to the several avenues by which it may be increasingly realistic to understand law and
legal systems as rules distinguishable from the political state. The ramifications of this
single change will remake power relationships well into this new century.
The materials in this book are designed to reach a broad audience. There are materi-
als here ofinterest to those beginning their study ofharmonization as well as to special-
ists in law and politics. The materials are meant to be accessible to all readers. There has
been an attempt to avoid jargon or language peculiar to the initiates of an academic
field ofstudy. The subject matter is meant to cover a broad area as well. There is a focus
on legal systems, to be sure, from the most successful national and transnational sys-
tems ofharmonization—the United States and the European Union—to those ofLatin
America and the Middle East. But the materials also consider globalization in the con-
text ofindigenous peoples’ rights, culture, and religion.
Because most ofthe contributors are lawyers, there is a special emphasis on the issue
of harmonization within the context of law. As a consequence, the materials are partic-
ularly appropriate for law students enrolled in Comparative or International Law
courses, or in seminar courses in either field of law, with a more detailed framework
within which to consider the complexities ofthe legal implications ofglobalization. The
materials could also be useful in courses on Trade Law. The goals ofthe materials are to
provide students with the analytical foundation for understanding issues ofharmoniza-
tion, and with contextual applications of these analytical foundations. The focus is not
merely on the familiar—that is on issues affecting the United States and Europe. The
materials also are meant to introduce students to the ways in which legal harmonization
is approached in often ignored areas of the world—places like Latin America, Africa
and the dar al Islam(that is, what some might understand as the “abode of Islam” or
the “Muslim nation” and generally understood as including those states with majority
Muslim populations).
The materials can also be profitably used in undergraduate political science courses.
The essays are especially useful for adding context to courses on national political sys-
tems or for courses on international political systems or globalism and political theory.
While the essays are related, each can be assigned independently of the others. Ad-
vanced courses in the sociology oflaw, or Islamic Law, might also find some ofthe ma-
terials useful.
Lastly, the materials in the book also can serve as a set of basic readings in advanced
seminar, research or paper oriented courses covering the field of legal harmonization.
The initial essays can be used to provide the reader with a conceptual and analytical
framework for examining legal harmonization. The other contributions provide con-
textual examination of the most significant issues in the field. Together, the contribu-
tions provide a diverse examination of theory and context rich enough to support a
stand alone advanced course.
My hope is that the study of some or all of the issues raised in these materials will
provide students, as well as other readers, with a broader perspective on globalization
and harmonization. Globalization is not a single and invariable set of norms, but in-
stead represents a tendency to seek to universalize behavioral norms that have taken a
variety offorms over the last several millennia. The current form ofglobalization, based
on private economic transactions, political democracy, and basic rules limiting the
power of governments and others over individuals—human rights—is neither unique
nor necessarily transcendent. Whether this form of globalization has any lasting power
remains to be seen.
Like globalization, harmonization does not take on a single form, nor is it an in-
evitable consequence of globalization. Harmonization is how we understand the
processes invoked to integrate rules of behavior. These materials provide the basis for
understanding the limited number ofpatterns for developing these processes. The push
for integration appears natural enough—two or more communities seeking to interact
need a common language of communication, perhaps common practices or common
systems ofrules. Integration in this context requires rules, and rules require law making
of some kind. Legal harmonization thus forms the basis of the materials provided in
this volume. Each contribution adds a layer to the understanding of the benefits and
limitations of legal harmonization and an appreciation for differences in governance in
a world that is so focused on standardizing globalization.
I will close this preface with thanks to all who have helped this project along. Penn-
sylvania State University has been gracious with its support of this project. The editors
at Carolina Academic Press have been exceedingly patient. My colleagues at the Coali-
tion for Peace &Ethics performed yeoman service as sounding boards for much of the
material that I authored. I want to extend particular thanks to the students enrolled in
my courses in Comparative Corporate Law and Comparative Constitutional Law. They
willingly served as test subects for the material. Their collective feedback and insights
proved invaluable. I extend special thanks to my student research assistants at Pennsyl-
vania State University: Jill Hammill, Chris Moffitt, Frank J. Lacquaniti, Katie Maxwell,
Barzilai Axelrod, and Pedro Hernandez.
It is sometimes easy to fall into jargon and obscurity when dealing with the complex-
ities of globalization and integration. It is also easy to indulge fads and popularly em-
braced analytical perspectives. But all of the contributors to this work have striven to
make the materials accessible to as wide an audience as possible, and all have sought to
avoid faddism of any sort.
Larry Catá Backer
State College, Pennsylvania
April 20, 2007
The Contributors
Emily Atwood received her LL.M. in Child Law from Loyola University of Chicago.
She has published work in the area of harmonization and is currently working on issues
of the protection of children. Ms. Atwood served as Law Clerk to Hon. Howard H.
Kestin, P.J.A.D. of the Superior Court of New Jersey, Appellate Division. She currently
works with private global advocacy and human rights groups based in Chicago, Illinois.
Larry Catá Backeris Professor of Law at Pennsylvania State University, Dickinson
School of Law. He previously served as Executive Director of the Comparative and In-
ternational Law Center and Professor of Law at the University of Tulsa College of Law.
Professor Backer has written on issues of international and comparative law, as well as
on the constitutional law of the European Union and has provided testimony to the
U.K. House of Commons on the European Constitutional Treaty. He has written a case-
book: Comparative Corporate Law: U.S.,European Union,China and Japan (2002). He is
a member of the American Law Institute, the European Corporate Governance Insti-
tute, and a founding director of the Coalition for Peace and Ethics, a non-profit organi-
zation promoting appropriate behavior among public, private, economic and religious
institutions.
Welber Barral is Professor of International Economic Law at the Universidade Fed-
eral de Santa Catarina Centro de Ciencias Jurídicas and has been a Visiting Professorial
Fellow at the Georgetown University Law Center He has also served as a visiting profes-
sor at the Universidad de Valencia (Spain), at Vytautas Magnus Universitas (Lithuania),
and at Penn State Dickinson School of Law. He is also on the roster of panelists for
MERCOSUR and for WTO. Professor Barral has written widely on international trade
issues and is a leading expert on the effects of the WTO on developing states. He has
written several books on issues of international trade and development, the latest of
which is Tribunais Internacionais: Mecanismos contemporaneos de solução de controvér-
sias (2004).
Gunnar Beckis a lecturer in E.U. law and legal theory at the School of Oriental
African Studies in the University of London, and a legal adviser to the European
Scrutiny Committee at the House of Commons. He was formerly a part-time lecturer in
E.U. law at the London School of Economics, where he still teaches occasionally. He is a
qualified barrister with full rights of audience in the higher English courts and holds a
doctorate in political philosophy from the University of Oxford, which he completed
under the supervision ofthe late Professor Sir Isaiah Berlin. He previously taught polit-
ical and moral philosophy at Oxford and worked for the E.U. and Competition depart-
ment ofthe law firm Herbert Smith.
Bruce Carolan is Head of the School of Social Sciences and Legal Studies of the
Dublin Institute of Technology, where he teaches and researches on European Union
and WTO law and the law of Competition. He is a past president of the Irish Associa-
tion of Law Teachers. He also is a Fellow of the Center for Comparative and Interna-
tional Law ofthe University ofTulsa School of Law, and has been a visiting professor at
the University of Florida Warrington College of Business and Stetson University College
of Law. He has taught the Law of the European Union, Competition Law, Trade Law
and International Business Transactions in Ireland, the U.S., the U.K., Argentina, Bel-
gium and Geneva.
Vivian Grosswald Curranis Professor ofLaw at the University ofPittsburgh. She is a
member ofthe American Law Institute, an associate member ofthe International Acad-
emy of Comparative Law, and during 2004–06 served as the United States member of
the Claims Committee of Austria’s General Settlement Fund relating to Nazi-era prop-
erty expropriations. She has served as Secretary of the American Society of Compara-
tive Law; chair of the AALS section on comparative law; and book review editor of the
American Journal ofComparative Law. She is the author ofLearning French through the
Law: a French/English Comparative Treatment of Terms in a Legal Context(1996); Com-
parative Law: An Introduction(2002); and is the translator from the German of Bern-
hard Grossfeld, Core Questions of Comparative Law(2005). She is a past director of the
Univ. ofPittsburgh’s LL.M. program and founded and directs its Languages for Lawyers
program. She has lectured and taught in the area of comparative law and theory in the
United States, Germany, France and the Netherlands.
Beth Farmeris Professor of Law at Pennsylvania State University, Dickinson School
of Law. She is a former state antitrust law enforcement attorney, is actively engaged in
researching and writing about the application of antitrust and trade regulation law
within the federal system of the United States and within the international community.
She is the chair of the American Association of Law School’s (AALS) section of An-
titrust Law & Economic Regulation. Professor Farmer serves as a member of the advi-
sory board ofthe American Antitrust Institute; as chair ofthe AALS Liaison Committee
of the ABA Antitrust Section; and as chair of the Professional Education Committee of
the ABA Administrative Law & Regulatory Practice Section. Professor Farmer’s teaching
and research interests also include criminal law, with emphasis both on white-collar
crime and on the impact of the criminal justice system on women.
Seema Lal is in private practice in New York. She received her LL.M. in Intellectual
Property from the Cardozo University School of Law, and her J.D. from Pennsylvania
State University. She is currently in private practice in New York and has worked exten-
sively in the publishing industry and does research in the intellectual property field.
Jo M.Pasqualucciis Professor ofLaw at the University of South Dakota. She earned an
S.J.D. in International and Comparative Law from the George Washington University Law
School, and she has worked with the Secretariat of the Inter-American Court of Human
Rights while on a Fulbright in Costa Rica. Her book, The Practice and Procedure of the
Inter-American Court of Human Rights, was published in 2003 by Cambridge University
Press.She has also published several law journal articles on international human rights law.
Christopher Stuart is an attorney employed by the United States Government. He
currently works on issues pertaining to Islamic jurisprudence and war crimes. He re-
ceived his J.D. with a Certificate in International, Comparative and Foreign Law from
Pennsylvania State University Dickinson School of Law. The opinions expressed in his
article are his own.
Melissa L. Tatumis nationally known for her work in jurisdiction and procedure
(particularly with respect to tribal courts) and is developing a national reputation in the
field of group rights. She served on a joint federal/state/tribal working group on cross-
jurisdictional enforcement of protection orders and co-authored a model tribal code for
enforcement of foreign protection orders. Professor Tatum speaks regularly at confer-
ences across the country on the topic of tribal jurisdiction, and has served as a faculty
member at the National Tribal Judicial Center. She has served as a judge on the South-
west Intertribal Court of Appeals and developed a system for indexing and publishing
the tribal court opinions of the Muscogee (Creek) Nation. She has served as a Co-Direc-
tor of the Native American Law Center at the University of Tulsa, where she has also
served as Director ofthe LL.M. Program in American Indian and Indigenous Law.
Takis Tridimas, LL.B. (Athens), LL.M, Ph.D. (Cantab); Sir John Lubbock Professor
of Banking Law and Head of the International Financial Law Unit of the Centre for
Commercial Law Studies, Queen Mary, University of London. Professor Tridimas is a
Barrister ofthe Middle Temple and Advocate, Bar ofAthens. He is Professor at the Col-
lege of Europe, Bruges. He was senior legal adviser to the E.U. Presidency (2003) and
Chairman of the Committee set up by the E.U. Council of Ministers to draft the Treaty
ofAccession 2003 by which ten new Member States joined the EU. His research interests
include all aspects of E.U. law, including securities regulation, financial services law,
company law, internal market, constitutional and administrative law, and the law of
remedies, internal market and comparative law. He has published extensively in the
fields of financial services and E.U. law. His publications include: Tridimas and Nebbia
(eds.): E.U. Law for the 21st Century: Rethinking the New Legal Order, Hart Publishing,
Volumes I & II, 2004; Tridimas: The General Principles of E..C Law, Oxford University
Press, 1999; He is the co-editor of the Yearbook of European Law, a member of the Edi-
torial Board of The Company Lawyer, and a member of the Advisory Board of the Eu-
ropean Financial Services Law Review.
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