Transnational Private Litigation and Transnational Governance

Abstract

Transnational law perspectives share with global governance concepts a background vision of functionalism across borders, in which a wide range of public and private norms, and state and non-state actors, from a multiplicity of jurisdictions, combine to achieve internationalist dreams of worldwide cooperation in obtaining basic international security and in advancing shared interests such as environmental protection, trade regulation, and human rights protection. A closer examination of the private law component of transnational law reveals the limits of this shared functionalist vision. Private laws—such as those of contract and property—risk being considered essential but unproblematic background institutions to the operation of the global economy, but private law can also be understood as necessarily about conflict and contestation. In particular, the litigation of private law claims, especially in the Anglo-American tradition of adversarial legalism, fits only uncomfortably within a cooperative vision of governance. This chapter examines transnational private litigation as part of, but mostly as a critique of, global governance. Although not yet realized, adversarial legalism with transnational reach potentially is a vehicle for contestation of the particular policies advanced in the name of global governance. For example, in a contemporary global order where cross-border regulation of business actors and activities is often ineffective, litigation can perform a critical role in disrupting the excessively “smooth” functioning of the world economy.