Professor Roderick Macdonald opened the recent Brooklyn Law School symposium, “Ruling the World: Generating International Legal Norms,” with a keynote address that described three metaphors – harmonization, transplantation and viruses. Macdonald, who is the F.R. Scott Professor of Constitutional and Public Law at McGill University, argued that absolute harmonization of legal norms is impossible, but temperance can achieve compromises that create effective convergence. “Soil” must surround transplanted norms for them to take root, he said. Viruses must have methods of autonomous reproduction, vectors of transmission, and a lack of immune systems or vaccines if they are to spread. Macdonald concluded that international norms generally represent one of these metaphors.
The symposium, held on October 24, was sponsored by the Dennis J. Block Center for the Study of International Business Law and the Brooklyn Journal of International Law. Participants examined how international legal norms have shaped commercial, tax and financial regulation laws.
The symposium’s first panel addressed public and private law-making in commercial law, focusing on the role of international organizations. Professor Henry Gabriel argued that soft law instruments best use limited resources, noting that soft law respects party autonomy and is more likely to emulate the “best” law because it avoids political pressure. Professor Amelia Boss said that it is not the distinction between hard and soft law that is important, but the process used to develop that law. Professor Boris Kozolchyk concluded the first panel by discussing the Uniform Customs and Practice for Documentary Credits.
The second panel addressed the impacts of global norms on taxation. Professor Hugh Ault discussed the Organisation for Economic Co-operation and Development and its norms. Ault stressed the unanimity required to pass actions at the council level at OECD, arguing that soft law such as OECD recommendations can become hard law through bilateral treaties based on the recommendations. Professor Reuven Avi-Yonah said that international norms make a difference, using the decline of specialized tax programs as an example and pointing out that OECD has successfully encouraged members to abandon these programs. Professors Miranda Stewart and Lisa Philipps examined the budgeting political process and stated that fiscal transparency has fostered better tax practices.
The final panel addressed financial regulation, including the Basel Accords and their impact on banking regulation, and whether international norms have affected the insurance industry. Professor Kern Alexander focused on the G10 and its cooperation in financial regulation given the risks posed by global financial institution failure. Brooklyn Law School Professors Roberta Karmel and Claire Kelly discussed the role of soft law in avoiding regulatory vacuums. And the final panelist, Professor Elizabeth Brown, argued that international norms have not been effective in regulating the insurance industry because individual states, rather than the federal government, regulate it. Brown concluded by mentioning recent efforts to facilitate the federal government’s ability to enter treaties, preempt state law, and thus encourage more soft law mechanisms.
The symposium was organized by Brooklyn Law School Professors Steven Dean and Claire Kelly. Papers from the symposium will be published in the Brooklyn Journal of International Law.
Watch a video of this event.
By Todd Batson ’09