Monday, January 13, 2014

Contested Collisions Conference Annotated Program

I was fortunate enough to have participated in a conference, "Contested Collisions," convened by Dr. Kerstin Blome, Prof. Dr. Andreas Fischer-Lescano, Dr. Nora Markard, and Prof. Dr. Stefan Oeter. The conference will be held in Bremen, 10th January 2014, - 12th January 2014.

The Conference Program may be downloaded HERE.

(Pix (c) Larry Catá Backer 2014)

This post includes the posted conference materials, a listing of conference participants with links, and and my annotations and analysis of many of the presentations.

My contribution is entitled: "Governance Polycentrism--Hierarchy and Order Without Government in Business and Human Rights Regulation." It has been posted to the Social Science Research Network and may be accessed here. The PowerPoints of my presentation may be accessed HERE.

Hosted by: Collaborative Research Center 597 "Transformations of the State", Project A2 "The Juridification of Dispute Settlement in International Law"
Conveners: Dr. Kerstin Blome, Prof. Dr. Andreas Fischer-Lescano, Dr. Nora Markard, and Prof. Dr. Stefan Oeter.
Venue: Haus der Wissenschaft, Sandstraße 4/5, Bremen
Time: 10th January 2014, 12 a.m. - 12th January 2014, 1.30 p.m.

Description: This three-day conference will controversially discuss the concept of "regime collisions." The concept is used to describe the fact that fragmentation into an increasing number of international regimes with overlapping areas of competence can lead to contradictory decisions or mutual obstruction.
The first phase of the conference will critically examine the phenomenon of regime collisions from a theoretical perspective. Is this a merely technical conflict of norms, or a competition of societal interest groups for specific goods? Is it best described as a problem of hegemony, as assemblage, as a cloak for North-South conflict? The second phase will look more closely at possible solutions to this phenomenon. Can there be a "meta-collision law", or no? What could be other ways to integrate colliding regimes with one another? How can private regimes be included in such solutions? The third phase will look at case studies to discuss the impact of the different theoretical and practical approaches in different fields.

Friday, 10 January 2014
Regime Collisions in a Fragmented World

13.00-13.30 Welcome and Introduction to the Conference
Kerstin Blome / Nora Markard, CRC 597, University of Bremen
Andreas Fischer-Lescano, University of Bremen
The introduction was notable for its offer of a conference focus: to situate regime collisions within its legal context, within, among and beyond states.  Four initial approaches were offered: (1) a classical legal approach in which states remain as the center of discussions of collisions of legal orders; (2) a political approach which acknowledges a (slight?) de-centering of states from the focus of discussion of governance (including governance through law) and which focuses on the political problems of governance fragmentation (from which the state is not really very far off of the center of the discussion); (3) a polycentric approach that suggests a layering of governance orders in which the state occupies a place, though what place and what (if any) order (the possibility of anarchy with or without order) there is to this layering remains to be explored; and (4) an autopoietic approach refocusing the discussion within social systems theory and touching on the distinctions between persons and bodies and between individuality and physicality of both natural persons, institutions and systems. Each of these strand were taken up by the conference participants.
13.30-15.00 Regime Collisions in a Fragmented World

Regime Collisions from a Perspective of Global Constitutionalism
Stefan Oeter, University of Hamburg / CRC 597, University of Bremen

Substance and Form
Christoph Menke, Goethe University, Frankfurt/Main
These two papers sought to set the parameters of the conceptual framework  of the conference objectives.  The first sought to place the debate squarely within the legal domain.  The second considered its more theoretical aspects beyond the field defining parameters of law. Professor Oeter looked to the evolution of global constitutionalism for a sense of the evolving parameters within which law both knows and disciplines itself within and among political institutions. That evolution, of course, also tests the founding parameters of legitimacy implied by the imposition of constitutional orders as it moves from a disciplinary technique of the state to one of the community of nations (directly) and of other regulatory institutions (indirectly). At its limit, these evolutionary tendencies might well overwhelm the integrity of the concept of constitutionalism itself or transform it beyond recognition.  At a minimum it suggests the strength of the process of institutionalizing international organizations  as well as its judicialization, even in the absence of courts and judges conventionally understood. But beyond that the narrative of constitutionalization is highly contested among at least three schools, functionalists (mapping what is happening), normativists (crafting strategic movement toward global constitutionalism) and pluralists (non unitary normativity).  Together these point to the problems of regime collisions within a constitutionalist construction, problems that focus on heterarchy (too little order; anarchy or chaos)and hierarchy (too much order; hegemony and revolution).  Professor Menke, on the other hand provided a  more inward looking exploration of contestation within law.  Focusing on the collision between law and not-law as an internal affair he considered four aspects of this problem: (1) the violence of law; (2) self-reflection; (3) non-communication: and (4) utopia in law. The discussion of the violence in law, well known in 20th century theoretical debates about the "nature" of law and therefore its relationship to those it affects or those who seek to use it, was particularly interesting.  It was interesting especially for the way in which such violence discussions are so heavily dependent on both he autonomy and exteriorization of law.  It suggests a basic instrumentalism that marginalizes both the legal character of custom and tradition, and by implication, is suspicious of interiorization of law, either as a post modern concept (Foucualt) or as a function of the character of customary law systems (Aristotle). More importantly, perhaps, it tends to view as essential the conflation of law as norm/rule and law as enforcement; of law as general principle and of law as situated application; of law as command and law as obedience; and thus precisely of the possibility of law as external and law as internal to its objects and subjects.  That tension, of course, is crucial, Professor Menke reminded us, ti the basic issues of law and justice.  Interesting as well was Professor Menke's application of important insights of Benjamin and Kleist to the issues of the possibilities of relief from law and the end of legal judging, self reflection in law as autonomy, and the importance of the self-condemning judge for the integrity of law, (drawing on Kleist's Der zerbrochne Krug) and on the utopia of the liberal state.

Phase I: Collisions How and Where?
Critical Perspectives on the Phenomenon of "Regime Collisions" and Their Effects

15.30-18.00 Collisions How and Where? Part One
(Chair: Hannah Franzki)

Normative Dilemmas: Postcolonial-Feminist Negotiations and Contestations
Nikita Dhawan, Frankfurt Research Center for Postcolonial Studies

Transnational Human Rights Litigation and the Collision of Spaces
Philip Liste, University of Hamburg

Global Territories: Zones of Economic and Legal Dis/Connectivity
Sven Opitz / Ute Tellmann, Institute of Sociology, University of Hamburg
These three papers considered the emerging relationships between the state and the transnational form a variety fo perspectives.  What appeared to hold them together was a certain nostalgia for the state, either by suggesting state failures to adapt to changing environments in ways that might preserve the integrity of the state and the state system, or by seeking to stretch the logic of the traditional law-state beyond its limits, that is to induce the state to gut its internal logic and, with facade intact, invest it with new qualities, in new and interesting ways. And indeed, these papers suggested the location of collision as situated between the ideal fo the state and the realities  of globalization within which the ideal of the state is sought to be re-imagined as something else again. Each described a space beyond the state within which the state was meant to serve a function.   Nikita Dhawan looked to the issue of the locus of responsibility (through the interventions of regimes of international law) within states but drawing on interventions from well beyond its traditional jurisdictions, focusing on the location of responsibility for acts of genocide within the logics of post colonialism. The issue was responsibility for genocide before genocide became reified within the structures of international law, the connections between colonialism and colonization and the modern strategies of remembrance politics and nation building. Philip Liste looked to the locus of remedial mechanisms for violations of human rights within courts but beyond states, though drawn from out of domestic legal orders in communication with other legal regimes. The focus was on Kiobel v. Royal Dutch Petroleum,  and the construction of a space within the American domestic legal order for contestation pitting corporate liability regimes (global) against territorial constraints (politics).  Liste used the enormous number of amici briefs to seek to map a transnational space created through litigation with transnational human rights implications within U.S. courts. Sven Opitz and Ute Tellmann looked to the locus of globalized flows of people and capital beyond states through the device of designating territories of either non-state zones or transnational state zones within which the logic of states is suspended to cope with the challenges of the movements of people and capital across borders. Here the focus was on the peculiar abstraction of physical territory, Christmas Island off the Australian coast, and the Cayman islands in the Caribbean, as spaces within which migrations of people and capital could be processed or secured beyond national territory.
Saturday, 11 January 2014 
09.30-11.00 Collisions How and Where? Part Two
(Chair: Philip Liste)

Private Uniform Law. Regime Conflicts in International Commerce
Insa Buchmann / Gralf-Peter Calliess, University of Bremen

"Semantic Struggles": Successful Norm Interpretations as Expressions of Power
Ingo Venzke, University of Amsterdam

Contested Normativity: Which are the Effects of Norm Contestation?
Nicole Deitelhoff, Goethe University of Frankfurt

This panel was notable for the way in which the participants wove together interior collisions within the language of law, interpretive communities, and exterior collisions between law and norm systems when both seek to resolve conflicts within the apparatus of the state. Nicole Deitelhoff took the provocative, and intuitively appealing position that rather than look to avoid or diminish collision—at least in the context of norm regimes, the opposite might be true. Her object is to explore meaning making through the language of norm contestation. She rejects the idea that such contestation is a sign of the weakness of a norm regime and instead suggests that contestation, of a managed sort at least, is basic to norms (understood more precisely as principles foundations from which rules are drawn). She elaborates this by considering he evolution of the so-called “right to protect” as an instrument of international law permitting the intervention by foreign states into the internal affairs of others under certain human rights related conditions. This produces a substantive clash between the principles of national sovereignty (non-interference) and human rights law at the international level. She suggests that the sort of norm contestation at the heart of the right to protect is useful for keeping norms fresh but cautions that contestations around the application of norms (good contestation) ought to be distinguished from contestations over the validity of norms themselves (bad contestations). In contrast, Ingo Venzke focused on the interrogation of the language of law itself, from the perspective of currents on 20th century European theory. He focused, like others, on the exteriority of law, and its remoteness from the structures of application. These, in turn, require both an interpretive community to give meaning in specific instances (practice itself carries the yardstick of itself) and a will to enforce (an aspect of the so-called violence of law). He applies this to collisions of meaning making among interpretive communities around the language of international law, providing three illustrations drawn form international humanitarian (versus for instance the laws of war) and investment law. He offers the insight that follows—the extent to which the face of law reflect s the relative power of colliding interpretive communities. Imposed interpretation, then, devolves into politics. Gralf-Peter Calliess and Insa Buchmann, on the other hand, considered the collision of state and non-state system within the arena of remedial structures provided by the state. Focusing on private law, they offered an analysis of the source of the collision, proposed a solution through the ordering management of hierarchy, and suggested legal practice regimes as the means through which this management by hierarchy (a supra level choice of law regime). The key here, of course, is the interaction of private transnational norm-governance with law regimes on the state’s own turf. Now within the domain of the state and its law-system apparatus, transnational norms may be rejected (as “not” law) or admitted (as “fact” within the normative framework of the domestic legal order). This hierarchical reordering and absorption is mediated through mechanics of deference built into the conflicts of law regimes of a state (e.g., the acceptance fo contract terms, practice understandings, etc.). This represents an ideal type for these collisions. The state can always overplay its hand, with the result is mobility outside the state courts through recourse to non-state dispute resolution mechanisms or by using the law regimes against the state itself (choice of law and forum provisions, etc.).

Phase II: Problem-Solving Approaches
Meta-Collision Norms, Heterarchic Networks, Technical Rules of Coordination?

11.30-14.00 Problem-Solving Approaches, Part One
(Chair: Johan Horst)

Horizontal Fundamental Rights as Collision-Rules: How Transnational Pharmaceutical Companies Manipulate Scientific Publications
Gunther Teubner, University of Frankfurt / Isabell Hensel, University of Bremen

Responsive Legal Pluralism
Lars Viellechner, Humboldt University of Berlin

Regime-Interplay Management
Sebastian Oberthür, Vrije Universiteit, Brussels
This panel took up where the prior panel left off. The object, again, was to theorize collision within a number of regulatory frameworks to offer the possibility not of generalization (given the irrelevance dangers of reductionism) but of specification of types within the general structures of regime collisions. Lars Viellechner took up the question of choice of law as a mediating technique for regime collisions in the context of horizontal fundamental rights and international law. There was a sense of an exportation and generalization of the E.U. model to societally and politically constituted organizations, one grounded in the principles of complementarity, subsidiarity, and identity preservation (margin of appreciation) as fundamental ordering structures for mediating conflict from out of regime collisions. What is needed are implementation rules to avoid vagueness and encourage discipline and the production of a system of responsive legal pluralism. This might produce a coherence and systemic legitimacy of law through conflict coordination. Gunther Teubner and Isabell Hensel sought to invoke markets and multiple actors to avoid regime domination in the production of knowledge. They focus on the collisions inherent in the production of scientific knowledge where research is funded, to a particular end, by industrial concerns in search of particular answers, and the avoidance of others. They seek to detach ownership from control of the direction, production and dissemination of knowledge through regimes of transparency and markets. This structure of knowledge production creates collisions between science, health and economic regimes. Those collisions can be better undertaken when knowledge itself is liberated from the ownership structures within which it is sought to be produced. Thus, for example, research results registration is offered as a means of detaching the use of knowledge from its production and ownership. Sebastian Oberthur then turned the discussion around and suggested the synergies possible through the management of engagement at least those touching on horizontal governance among international organizations and states. He applies regime interplay management (comity) principles to horizontal conflicts for collective governance in the form of six lessons: (1) normative conflicts are overrated and synergy neglected; (2) there is a significant degree of order in the fragmented world of international law and institutions; (3) order is significantly shaped and governed by the collective interplay; (4) a radical change of inter-institutional order is difficult; (5) there is scope for improving legal framework for governing regime inter-play; and (6) advances in collaborative governance from out of collision can and have been made incrementally.

15.30-18.00 Problem-Solving Approaches, Part Two
(Chair: Nora Markard, University of Bremen)

Governance Polycentrism-Hierarchy and Order Without Government in Business and Human Rights
Larry Catá Backer, Pennsylvania State University

Addressing Regime Overlaps: Ex-Ante Versus Litigating them Ex Pst, Operaitonal and Conceptual Regime Interactions,
Jeffrey L. Dunoff, Temple University, Philadelphia

Transcending Collisions? Critique of Law in World Society
Andreas Fischer-Lescano, University of Bremen
This panel focused more deeply on the issue of problem solving approaches for regime collisions; if regimes collide, and if these regimes include both those internal to a governance framework and those between these frameworks, then is management possible. Even more interesting, perhaps, is the question of whether order is possible, or whether, instead, the future lies in anarchy. The three approaches taken by the panelists were quite distinct, and distinct from each other. Andreas FIscher-Lescano focused on the interior discussion of law, its coherence in the face of its own internal collisions.  But it is a conversation grounded in the acceptance of the exteriorization of law, that is of the disassociation between law and its object-creators.  Law, as something apart from those on whom it has an effect, or presumably as will those who deploy it, is violence as it is conceived and especially as it is activated. That collision between the law an an external force and its objects might be militated  through a four satep process of transformation: (1) dissociation of legal violence and state violence; (2) Commemoration of legal violence; (3) a transformation fo violence ot force; and (4) a transcendence of violence (to place the legal system itself on trial to lead to a new legality).  Larry Backer provided something that might be understood as a version of this transformation of violence to force and of law to order without hierarchy by considering the consequences of the emergence of polycentric systemicity in the governance of business and human rights.  The focus was on the possibilities within the structures of the Guiding Principles for Business and Human Rights nd its efforts to militate collisions among autonomous state systems and the non-state governance orders of business enterprises through the common language of international law/norms.  The object is to produce force without violence, the enforcement of non-law by a non.-judicial body that results in a non-enforceable conclusion but one with consequences. The consequences follow from the interiorization inherent in law that moves from violence to force. Jeffrey Dunoff provides a view of the possibilities of that interiroization at the institutional level. He theorizes that space within which institutional interaction serves as the normative foundation of activity.  He then maps these interactions.  He shows that the boundaries between regimes are virtually always ambiguous, frequently porous and increasingly fluid. As a result, the significance of the borders traditionally considered to distinguish between regimes can diminish in importance and and can shift from collaborative to competitive to conflictual as different issues emerge, or as relationships evolve over time.

Sunday, 12 January 2014
Phase III: Case Studies

09.00-11.30 Case Studies
(Chair: Lars Viellechner)

(Not) Solving Constitutional Problems: Trans-Constitutionalism Beyond Collisions
Marcelo Neves, University of Brasilia

"Peace vs. Justice": The UN Security Council and the ICC
Kerstin Blome / Nora Markard, CRC 597, University of Bremen

Financial Derivates: Private Financial Regulations and Human Rights
Johan Horst, CRC 597, University of Bremen

Business Enterprises and Non-financial Reporting
Sebastian Eickenjäger, University of Bremen

ICSID and Human Rights Bodies
Hannah Franzki, Birkbeck College, London / CRC 597, University of Bremen
This panel brought the insights and interrogations of the prior discussions  within a more deeply contextual framework.  Mercelo Neves provided a conceptual structure by suggesting the ways in which his notion of transconstitutionalism, well developed in prior work, might provide a basis for working through issues of regime collision.  Transconstitutionalism, informed by systems theory, posits that the conflictual interrelations between different constitutional norms from different legal orders can only be mediated through inter-systemic constitutional dialog and learning in mutual respect and recognition, rather than by reference to a singular and binding set of meta constitutional norms.

12.00-12.30 Concluding Comments

Kerstin Blome / Nora Markard, University of Bremen

List of participants

Larry Catá Backer
Pennsylvania State University, Dickinson School of Law

Kerstin Blome
The Collaborative Research Center 597 "Transformations of the State"

Insa Buchmann
University of Bremen, Institute for Commercial Law

Gralf-Peter Calliess
University of Bremen, Institute for Commerical Law

Nicole Deitelhoff
Goethe University Frankfurt, Institute for Political Science

Nikita Dhawan
Goethe University Frankfurt, Frankfurt Research Center for Postcolonial Studies

Jeffrey L. Dunoff
Temple University Philadelphia, Beasly School of Law

Sebastian Eickenjäger
University of Bremen, Centre of European Law and Politics

Andreas Fischer-Lescano
University of Bremen, Centre of European Law and Politics

Hannah Franzki
Birkbeck College, School of Law, London

Isabell Hensel
University of Bremen, Centre of European Law and Politics

Johan Horst
University of Bremen, Centre of European Law and Politics

Kolja Möller
Cluster of Excellence at Goethe University Frankfurt/Main

Philip Liste
University of Hamburg, School of Business, Economics and Social Sciences

Nora Markard
The Collaborative Research Center 597 "Transformations of the State"

Christoph Menke
Goethe University Frankfurt, Department of Philosophy

Marcelo Neves
University of Brasilia, Law Department

Sebstian Oberthür
Vrije Universiteit Brussel, Institute for European Studies

Sven Opitz
University of Hamburg, School of Business, Economics and Social Sciences

Stefan Oeter
University of Hamburg, Law Department

Ute Tellmann
University of Hamburg, School of Business, Economics and Social Sciences

Gunther Teubner
Goethe University Frankfurt, Law Department

Ingo Venzke
University of Amsterdam, Amsterdan Center for International Law

Lars Viellechner
Humboldt University Berlin

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