by Peter Odell and Chris Willett (ed). Oxford: Hart Publishing, 2008. 174pp. Paperback. £22.95/$48.00. ISBN: 9781841134079.
Reviewed by David Wallace, Department of Law, United States Military Academy, West Point, New York. Email: David.Wallace [at] usma.edu.
Peter Odell and Chris Willett’s book, GLOBAL GOVERNANCE AND THE QUEST FOR JUSTICE (VOL. 3) – CIVIL SOCIETY is one in a four volume set of scholarly works entitled Global Governance and the Quest for Justice.
The overall purpose of the four volume collection is to address the legal and ethical deficits associated with the current round of globalization and to discuss the building blocks for modes of global governance that respect the demands of legality and justice. Volume 3, CIVIL SOCIETY, focuses on themes of citizen organizations and empowerment set in the context of globalizing legal processes. Odell and Willett’s book is a collection of eight scholarly essays addressing a wide range of contemporary issues regarding various aspects of the way in which the law shapes, mediates, and reacts to the evolving relationship between globalization and civil society. These articles are preceded by an insightful introduction (Chapter One) in which Odell and Willett not only briefly summarize the contributions of the authors contained in the book, but also offer their own valuable insights into the development of the law in this area.
Overall, the collection of essays is well written and logically compiled. A welcome feature of GLOBAL GOVERNANCE AND THE QUEST FOR JUSTICE (VOL. 3) – CIVIL SOCIETY is a roadmap appearing on the first page of the book. Coupled with Odell and Willett’s introductory chapter, the reader has an excellent sense for the way ahead. After the introductory chapter, the next three chapters focus on other challenges that globalization creates for the application of private law. By way of illustration, the authors explore how contract and tort legal principles that have been created and developed largely in domestic legal systems, adapt and apply to global transactions and civil wrongs. Chapters Five, Six, and Seven consider procedural, professional and institutional challenges to the access to justice in a globalized world. Chapter Eight addresses public service and the limits to competition law. Finally, in Chapter Nine, the author discusses the issue of democracy in a globalized world. Although all of the essays are informative with exceedingly important analyses and are absolutely worth reading and interesting in their own ways, I will highlight three of the essays below for further consideration.
Annette Nordhausen, a lecturer in Law at the University of Sheffield, contributed Chapter Three, “Can Soft-Law Solve the Problems Arising in International Electronic Contracts,” to the collection. Well organized and easy to read, Nordhausen’s essay examines [*377] problems and possible solutions for online international consumer contracts and the advantages and disadvantages of using “soft law” as a means of regulating international consumer contracts. As defined in the essay, soft law is self regulation put into place by non-governmental organizations, international organizations or industry. Nordhausen argues that the main advantages of soft-law are (1) such regulation can provide adequate and specialized solutions; (2) it can be introduced quickly and does not require a lengthy legislative process; (3) it is independent from national borders and can more easily be introduced world-wide; and (4) it has a high level of acceptance amongst those who subscribe to it. By contrast, Nordhausen notes that the primary disadvantages of soft law include: (1) a lack of democratic legitimacy; (2) interests of individuals and minority groups have a competitive disadvantage; (3) a lack of comprehensiveness; (4) being only binding on those who opt for it; and lastly (5) it is not enforceable. In sum, Nordhausen concludes, although soft-law has some advantages, it cannot wholly replace formal statutory law in regulating international consumer contracts in cyberspace.
Among the essays in the collection is one on dispute resolution and access to justice by Axel Halfmeier, an Academic Assistant at the University of Bremen, titled, “Is There a World Courthouse on Foley Square? On Civil Procedure, Private International Law and Human Rights in the Age of Globalisation.” Halfmeier’s essay addresses the forums that are evolving to address private litigation in the context of globalization. In a very clever way, the title of the piece draws the reader in like a moth is drawn to a light. The United States District Court for the Southern District of New York is located in Manhattan at Foley Square. As Halfmeier points out, the federal district court at Foley Square, like many others around the United States, have functionally become “world courts” because such courts are constantly dealing with cases that have little connection to the United States. By way of illustration, Halfmeier points to the case of WIWA v. ROYAL DUTCH. The case, which was tried in the United States District Court for the Southern District of New York, involved a transnational defendant corporation located in the Netherlands. The plaintiffs were Nigerian nationals, some of whom lived in the United States, who claimed their human rights were violated by the Royal Dutch Corporation in connection with its oil exploration activities in Nigeria. As the author notes, there are, of course, countless examples such as cases including: German companies and Swiss banks for their behavior during the era of the Third Reich; war crimes in the former Yugoslavia; torture in Ethiopia; and summary execution and torture in the Philippines, among others.
Not surprisingly, Halfmeier observes that the response to such litigation is a matter of perspective. Plaintiffs welcome US courts because such forums may be the only way that they can bring their case to a court. By contrast, others are far more critical. They believe that it is arrogant for US courts to interfere in the business of other nations. The author explores the above issue from the limited perspective of private international law. In terms of the framework for the essay, Halfmeier initially addresses the issues of jurisdiction and sovereign immunity. [*378] He then argues that the question of the applicable substantive law challenges traditional conflict of law rules under the conditions of globalization. Halfmeier argues convincingly the future of private litigation in the context of globalization will not be a centralized world court system. In his view, it will be a patchwork of national court decisions regarding transnational issues. According to the author, a transnational tort law regarding human rights violations can emerge. Such a development can be supported, in Halfmeier’s view, by adequate jurisdictional rules such as the doing business jurisdiction in the United States.
The third essay highlighted in this review is Bob Watt’s “evoting and e-empowerment – the Case against Cyberdemocracy.” Professor Watt is a Senior Lecturer and the Head of the School of Law at the University of Essex. Thematically, Watt’s essay explores the impact globalization has on democracy. In the first part of his essay, he sets the stage for his reader by noting that the number of people voting in political elections in Great Britain has declined dramatically over the past several decades. He also notes that such a phenomenon is not, in his words, wholly British. The United States has experienced a shrinking voter turnout as well. According to Watt, the UK’s response to the decline was the Political Parties, Elections and Referendums Act of 2000. Among the various pilot programs established under the law, it created a program for voting by using digital technology – e-voting. Arguably, e-voting will increase the number of people participating in elections because they can vote from home, work, or any place with digital media.
Watt next considers the legal reasons for excluding e-voting. Of note, he argues that e-voting via the Internet carries with it grave risks to secrecy, which is well established as a fundamental principle of democracy enshrined in both English and international law. For example, according to Watt, if an individual votes in the workplace by means of the Internet, his or her employer can easily intercept or watch the vote. Likewise, home voting can degenerate into a group activity. In the course of his analysis, Watt considers how Irish courts have dealt with this issue, as well as how human rights rules apply. The author concludes, in part, that e-voting may be legally problematic unless there is no other alternative for exercising a right to vote. In the later part of his essay, Watt discusses the general types of reasons qualified voters abstain from voting: disengagement, disenchantment, and disempowerment. After some introductory remarks about the reasons, Watt focuses his essay on disempowerment. Within the context, he effectively makes the argument that globalization and digital technologies may work synergistically both to lower turnout and improve the chances of non-traditional candidates.
In sum, the well-written and argued essays in GLOBAL GOVERNANCE AND THE QUEST FOR JUSTICE (VOL. 3) – CIVIL SOCIETY, taken together, will contribute substantially to the reader’s understanding of the phenomena of globalization in the context of civil society. Put differently, this volume provides a comprehensive panorama of the range of issues [*379] regarding globalization and civil society. The editors and authors of this work should be highly commended for undertaking this important venture.
WIWA v. ROYAL DUTCH, 226 F.3d 88 (2nd Cir. 2000), cert. denied, 532 U.S. 941 (2001).
© Copyright 2009 by the author, David Wallace.