by Francis Snyder, Oxford and Portland, Oregon: Hart Publishing, 2010. 533pp. Hardcover. £75.00. ISBN: 9781841137049.
Reviewed by Dr. Sideek M. Seyad, Faculty of Law, Stockholm University, Sweden. Email: sideek.mohamed [at] juridicum.su.se.
It is purely a coincidence that this book had to be reviewed in Beijing during my research visit as a guest of the Institute of Law of the Chinese Academy of Social Science in the summer of 2011. Snyder himself had been a guest of the Institute of Law and Peking University, and some parts of this book appear to be based largely on his lectures at these highly reputed and acclaimed academic centres in China. Apart from dealing specifically with various issues of global governance in relation to China, the book also focuses on the emergence of new norms such as soft law as opposed to hard law.
This is a collection of scientific papers that were previously published in well-reputed law journals spanning over a period of about ten years. The fact that such articles are codified into a book does not devalue its contents or its originality. In fact, as Snyder himself acknowledges, most of the papers have been updated and others revised or rewritten, which in turn further enhances and refines their quality. The diverse and complex legal issues dealt with by Snyder are extremely dynamic and fluid in nature. By adding and subtracting some portions of his previous articles, Snyder has thus transformed it into an excellent piece of scientific work, enriching it both in terms of quality and quantity.
As far as the structure is concerned, it is clearly and precisely divided into different parts and chapters, thereby making it reader-friendly. Apart from the short introduction, the first part is divided into four chapters in which Snyder introduces a host of interesting concepts such as globalisation, sites of governance and global legal pluralism. The second part develops further the concepts introduced in the first part and divides them into four chapters. In this part, Snyder clearly explains the relations between the European Union (EU), China and the World Trade Organization (WTO) as three distinct but interrelated sites of governance. The third and final part consists of two chapters dealing specifically with international trade regulation, regional integration and global governance.
Since the early 1950s there has been an explosion of international and regional organizations followed by the emergence of new norms of governance such as soft laws. The birth and development of these institutions and norms have correspondingly posed a new challenge in the field of global governance. One of the earliest regional organizations to be established was the EU, whose initial membership of just six countries has now jumped to 27. The EU has grown not only in terms of its membership but also its objectives as the process of [*612] integration has widened and deepened over the years. China, which is also taken as a case study, has recently overtaken Japan as the world’s second largest economy, and in 2011 it completed ten years of its membership in the WTO.
All these international developments have posed new challenges to the question of global governance. The emergence of these new organizations and power structures raises the question of how to identify and establish new norms of governance to regulate the relationships between these actors. International organizations such as the EU have their own rules and regulations but they must co-exist with other sites of governance, different norms, and diverse economic and political values. Even within the EU, norms do not always apply evenly to all its Member States; the best example is that of the Euro, the single currency of the majority of the EU member states.
All of these developments taking place at the international, regional, and domestic level have drawn legal scholars to propose new theories and prescribe innovative mechanisms to establish and develop a system of good governance between the global organizations and states. It is in this context that the work of Snyder regarding the multiplicity of sites of governance and global legal pluralism should be viewed and appreciated. The issue of global legal pluralism, as Snyder himself claims, is at the heart of the book.
With these brief comments placed as the background, it will be useful to briefly summarise the content of the book. In the first chapter dealing with the relationship between globalisation and law, Snyder not only provides ample reference to a vast source of literature but also introduces the concept of sites of governance and the theory of global legal pluralism.
At the very outset, Snyder rightly points out that globalisation has had an impact on many areas of law. There are some areas of law, such as in the field of financial services, that experience a greater impact due to globalisation than, for instance, family law. In the process of legal globalisation, there is a tendency for national legal fields to become international and at the same time for national and local institutions, concepts, and norms to have an impact on international concepts.
Globalisation has also given rise to the development of new institutions and new types of norms. On the institutional side, there are several entities such as WTO regulating world trade and debt security rating agencies that in recent times have downgraded the credit worthiness of countries ranging from the smaller Greece and Portugal on up to Italy and the more powerful USA.
Snyder explains the nature and scope of the application of soft law in general, which had its origin in international law but has become increasingly significant in national legal systems and at the regional level, such as in the EU. While asserting that most of the research is done by western scholars on the new institutions and norms, such as in the field of international human rights, labour law, migration, and environment, Snyder regrets they are carried out without giving sufficient attention to [*613] the ideas of their counterparts from the other continents.
The emergence of these new institutions and norms has in turn raised the important issue of governance of globalisation. In order to find an answer to the question of how globalisation is governed, Snyder analyses four distinct theories based on contract, hierarchy, transnational networks, and global legal pluralism and identifies their strengths and weaknesses. He concludes with a discussion on the problems confronting global governance, particularly in light of the 2008 global financial crisis, highlighting the need for further research on the role of law in order to reform the global governance. Snyder strongly suggests that in a world of increasing legal pluralism, the reform measures should take into consideration other legal cultures from Asia, Africa and Latin America.
The second chapter examines the link between economic globalisation and the law with special reference to international trade. Snyder briefly defines what constitutes globalisation by reference to economic, political, social and legal processes. He skilfully highlights how globalisation and law influence and condition each other, identifies some of the main issues in the field and then introduces the concepts of sites of governance and global legal pluralism. There are various arguments adduced to establish the claim that globalisation is governed by a multiplicity of sites, or what is often referred to in this book as global legal pluralism.
In order to highlight the interconnection between globalisation and global legal pluralism and to promote the theory of global legal pluralism, Snyder takes as a case study the complex international toy industry representing several chains of actors and countries located across the globe that are subject to different economic, political and legal cultures. The case study shows the plurality of legal systems in action, ranging from US Intellectual Property Law and Japanese Antitrust Law Customs Law of the EU, all of which directly or indirectly govern the global trade in toys.
Chapter three further elaborates on the concept of sites of governance and the theory of global legal pluralism. Here Snyder addresses the question of how economic globalisation is governed through a case study on the regulation of international trade between the EU and China, which essentially forms one of the fundamental themes. He further divides each site of governance into two dimensions, namely structural dimension and relational dimension, the latter referring to relations between the site and other sites of governance. These sites deploy a wide variety of legally binding measures labelled as hard law, with those norms that are not legally binding known as soft law. Snyder suggests that the totality of sites of governance should be viewed as a new form of global legal pluralism. Within each site of governance, in a precise and concrete manner, Snyder highlights several individual components such as competition policy, property arrangements, and modes of labour control, by reference to the international commodity chain.
The aim of chapter four is to examine the foundations of global legal pluralism. Snyder explains the correlation between [*613]international economic integration and trade, the disintegration and fragmentation of production, and the rise of global legal pluralism. In due course these relationships contribute to changes in institutions, norms, and dispute resolution processes. These interrelations are thoroughly examined by reference to the relations between the EU and China, taking as a case study the anti-dumping dispute between these parties, known as the Chinese Bicycles Anti-Dumping Saga. The case study shows how the EU anti-dumping law has been transformed into a form of regulation of both international and domestic competition.
The impact of WTO law on the EU is the theme of chapter five. These are two important sites of governance and in this context Snyder refers to the role of the ECJ as a gatekeeper between the EU and WTO. This chapter is more of a case study of law emanating from both the ECJ and the WTO dispute settlement mechanisms. The effects of the WTO on the EU legal order, the WTO and the individual, and also the relations between the EU and its member states are clarified by the ECJ; the author describes them as “the three generations of relations between the GATT/WTO and the EC/EU sites” (p.203).
A survey of case law shows that WTO law has contributed to the expansion of the normative resources available to EU institutions, especially the ECJ. The latter has consistently denied granting direct effect of the WTO rules. Case law has contributed to an increasing normative integration between the WTO and EU, but it has also weakened the position of individuals within the EU legal order. In addition, WTO law as interpreted by the ECJ has tended to foster tighter relations between the EU and its member states. Snyder suggests that it is time for the judiciary, the legislature or the executive of the EU to chart new relations between the EU and the WTO.
In the process of interaction between different sites in a world of global legal pluralism, a series of new norms has emerged; they are identified and some of them discussed in chapter six. The concepts of anti-dumping and non-market economy, which find much expression in the preceding chapter, are subject to an extensive, detailed, and critical discussion. Snyder examines their historical, philosophical, and legal foundations by reference to different jurisdictions, including the sites of governance covered in the book. The ways in which relations between sites of governance gave birth to these new legal concepts are articulated in a clear, critical, and methodical manner.
The next chapter examines the ways in which relations between sites of governance can change the structural features of sites such as norms and presents the relations between the EU and China as a case study to establish this point. The discussion is of particular interest to those interested in the origin, sources, development, and effects of soft law. Snyder states that soft law may sometimes become hard law by judicial or legislative intervention, but the following discussion is confined only to the latter category.
Further developing the preceding discussions on EU anti-dumping rules, Snyder critically examines an exception to such rules based on what is known as individual treatment for some category [*615] of Chinese firms exporting into the EU market. This case portrays in a vivid and comprehensive manner how this exception, initially based purely on the administrative practices of the European Commission, gradually developed into soft law and then crystallised into a hard law regime.
Apart from the conventional sites of governance such as the EU, the WTO and China, chapter eight explores the emergence of a site of governance within a site, which is labelled as an international production network (IPN). The well known and important motors of globalisation are the multinational companies and international financial markets, both of which operate beyond national and regional boundaries. The kind of governance covered often arises out of relations between regional integration schemes and economic globalisation in the form of IPNs. As a case study, the legal foundation of IPNs on EU law is thoroughly examined in this chapter. Snyder makes it abundantly clear through reference to legal materials, case law and other useful legal sources that EU law fosters, structures, and channels these transnational economic relationships. At the same time Snyder repeatedly argues that globalisation and regional integration are both friends and foes mutually enforcing but also competing with each other. He discusses at length both through reference to hard law and case law the EU’s customs operations known as inward and outward processing procedure, which represent one of the organisational forms of IPNs. .
In recent times there has been a surge in the number of regional trade agreements (RTA) that China has entered into, especially with its immediate neighbours. The reasons for such economic cooperation, which give birth to new sites of governance, form the subject of discussion in chapter nine. The kind of agreements China has entered into both within Asia and beyond are compartmentalised into three clear categories: economic integration agreements, standard regional trade agreements with countries in the Asia-Pacific regions, and bilateral free trade agreements with non-Asian countries. Their aims and objectives are discussed in a simple, clear, and straightforward manner. Snyder also examines their level of compliance with WTO law focusing mainly on safeguards, rules of origin, and dispute settlement mechanisms.
The last chapter explores the role of ethical issues such as human rights and environmental protection in the field of international trade regulation and global governance. The ethical issues are not harmonious sets of conduct or behaviour common to all sites of governance. It is also not an easy task to determine whether and to what extent they will be politically and socially acceptable within different sites of governance. The matter of ethics in international trade regulation thus poses a major challenge to global governance. Snyder seeks to find an answer to this challenge by reference to WTO law. After examining the relations between the WTO and other sites of governance, such as various agencies of the United Nations, he concludes that the WTO can effectively take account of ethical issues in international trade by strengthening its relations with other sites of governance.
Let me shift from summary to evaluation. The language used in this book may appear to be a little too heavy on readers from non-English speaking countries, as presumably one of its main target groups is the Chinese. However, by investing a little extra time and effort, readers will certainly not find it difficult to absorb the substance of this excellent piece of legal research on global legal pluralism. Readers with a background in EU law and WTO law will however be distinctly at an advantage in understanding and appreciating this work as it touches much upon legal materials, case law, and various concepts that are peculiar to these sites of governance. Even though China is one of the main actors in this book, by intent or omission there is insufficient reference to legal sources from this particular site of governance.
The main emphasis is on globalisation and global legal pluralism. The process of globalisation does not always move in the forward direction. There are exceptions where a reverse trend is also detectable, particularly in the context of the EU. Such a development could arise when the required level of liberalization and integration within the EU’s single market has been attained. With successive treaty amendments, the EU began to assume more competence in several policy areas that had been the monopoly of its member states. The financial market is a case in point: since the coming into force of the Single European Act in 1985, several legal measures were adopted based on the so-called minimum harmonization rules. The implicit long-term objective of these legal measures is to develop and unify all the national markets into a strong and single European financial market. When such a target is achieved, the financial market will be subject to a single set of rules, and to that extent the theory of legal pluralism will correspondingly lose its relevance, at least within the parameters of the European financial market. However, the externalities of the European financial market will continue to attract the other sites of governances within the framework of global legal pluralism.
Snyder states that internationalization of legal fields has traditionally been the monopoly of Western countries and now with emerging economies like China and India asserts it is time for such dominance to end. Undoubtedly this had been the case in the past, but the current developments in China and not least in India appear to break this long-held academic monopoly. China for example is now open not only to global commerce and trade but also to the academic world as well. This has resulted in the mobility of scholars between China and the western world. The outcome of this transaction is that Chinese scholars have become equal or even more progressive in doing research in these areas, both at home and in several foreign universities.
It is also useful to refer to the outcome of several G-20 meetings held at the height of the financial crisis. At these meetings the heads of states or governments representing countries ranging from the US and the EU to China, India, and Brazil agreed upon several global financial market reform measures. All such agreements and understandings were reached only after careful and drawn out deliberations; these were not imposed upon any country or organisation under any form of direct or indirect political or economic pressure. This is just one example that [*617] satisfies Snyder’s concerns of ensuring that countries like China are on board as equal partners in the regulation of the global financial market. Such a trend to move towards consensus and accommodation between different sites of governance is also visible in other fields of international relations, such as within the framework of the United Nations.
Regarding the discussion on the origin and evolution of new norms within and between sites of governance, Snyder rightly asserts that a hard law becoming a soft law “appears to be rare, though probably not unknown” (p.207) but does not go into any further detail. It is useful to fill this speculative vacuum by giving a rare example in the context of the EU, whereby a hard law was downgraded to the category of soft law. For instance, the original treaty basis for the adoption of Council Directive 88/361/EC on free movement of capital was repealed and replaced by the Maastricht Treaty in 1994. This legal instrument not only provided for the liberalization of the free movement of capital but also incorporated an annex containing a long list of capital transactions. As a result of the amendment, Council Directive 88/361/EC no longer formed the legal basis in this branch of the EU’s internal market. Even though this hard law lost its legal standing, ECJ continues to rely on it as a source of “indicative value,” in order to ascertain what constitutes capital for the purposes of Article 63 of the Treaty on the Functioning of the EU. It is significant to note that this treaty provision does not provide any definition or guidelines to ascertain what constitutes capital or capital movements.
Snyder suggests that the imposition of anti-dumping measures on the Chinese bicycle industry is an illustration of the use and abuse of the EU anti-dumping law, especially by reference to the concept of “non market economy.” His critical evaluation of the Commission decision to impose anti-dumping measures and its confirmation by the ECJ need to be qualified. The imposition of anti-dumping measures may have some elements of protectionism but are authorized by national, regional, and international law. Such measures are not illegal, particularly under EU law, and as discussed in the book it could be challenged before the General Court if a final appeal is available on a question of law to the ECJ.
There has been a traditional distinction between the so-called market economy largely led by the western countries and the non-market economies of the former Soviet Union, China, and other eastern countries. Since the inception of the EU in 1958, the foundation of its single market has always been based on the principle of an open market economy with free and fair competition. It is one of the mandatory entry requirements for applicant countries that wish to join the EU.
At the time of the dispute, the Chinese economy was totally state-controlled and the concept of a free market was almost unknown. Even though China began to gradually open up its market some thirty years ago, it was only in 2001 that it joined the WTO and thereafter opened its economy to inspection and competition with the outside world. In light of these circumstances, the decision by EU institutions to impose anti-dumping measures on China, [*618] particularly after giving a full hearing to all affected parties, is legal and defensible. However, as rightly pointed out by Snyder, such anti-dumping measures have an expiry period, and further extension of such measures should certainly take into consideration the current level of openness and accommodation of foreign competitors in the Chinese market.
All in all, Snyder has achieved his primary objective, which is to contribute to the understanding of the roles of sites of governance and highlight the significance of global legal pluralism in international trade regulation. It is not only innovative in style and approach but also an invaluable contribution to a relatively underdeveloped area of legal research in the field of international trade law. I can warmly and wholeheartedly recommend this book as an excellent legal companion to those interested in International Trade Law, ranging from lawyers, international jurists, and trade diplomats to advanced students in law, political science, and commerce.
© Copyright 2011 by the author, Sideek M. Seyad.
© Copyright 2011 by the author, Suzan Gluck Mezey.