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Cambridge Journal of International and Comparative Law Cambridge Journal of International and Comparative Law Publication TheCambridge Journal of International and Comparative Law (CJICL) is an open-access publication available online at <http://cilj.co.uk>. Each volume consists of two or more general issues and occasional symposiums on a particular area of law. Editorial policy All submissions are subject to a double-blind peer-review editorial process by our Academic Review Board and/or our Editorial Board. Submissions The Journal accepts the following types of manuscript: (i) Long Articles between 6,000 and 12,000 words but not exceeding 12,000 words including footnotes; (ii) Short Articles not exceeding 5,000 words including footnotes; (iii) Case Notes not exceeding 3,000 words including footnotes; and (iv) Book Reviews not exceeding 2,500 words including footnotes. Please visit our website for submission details. Copyright and open-access policy The CJICL is an open-access publication governed by our publishing and licensing agreement. Any commercial use and any form of republication of material not covered by the applicable license is subject to the express permission of the Editors-in-Chief. Contact information Cambridge Journal of International and Comparative Law Faculty of Law, 10 West Road Cambridge, CB3 9DZ United Kingdom E-mail: [email protected] Web: http://cilj.co.uk Typeset in InDesign. ISSN 2050–1706 (Print) ISSN 2050–1714 (Online) © 2016 Cambridge Journal of International and Comparative Law and Contributors This issue should be cited as (2016) 5(3) CJICL. http://cilj.co.uk Editorial Board 2015–2016 Editors-in-Chief Catherine Gascoigne Barry Solaiman General Managing Editors Michael Dafel Darren Harvey Massimo Lando Lan Nguyen Niall O’Connor Stefan Theil Conference Convenors Oliver Butler Rajiv Shah Blog Managing Editor Dennison Giongco Treasurer John Magyar General Editors John Adenitire Divyanshu Aggarwal Sayomi Ariyawansa Jonathan Brosseau Andrew Brown Ya Lan Chang Rosalind Comyn Theofili Elenoglou Florian Ettmayer Raffael Fasel Nicola Jaccarini Natalie Jones Ridhi Kabra Michael Keks Sarah McGibbon Eleni Methymaki Charles Noonan Stanley Nweke-Eze Mark Retter Alessandro Rollo Namita Singh Sophie Starrenburg Luke Villiers Sam Wong Conference Assistants Ana Carolina Dall’Agnol Konstantina Goergaki Abhijnan Jha Paige Mason Su Wai Nang Tianshu Zhang Blog Editors Adrian Parker Furong Yang Faculty Advisory Board Professor Catherine Barnard Professor John Bell QC Dr Kate Miles Senior Treasurer Professor John Bell QC Academic Review Board Members Dr Geert De Baere Professor Christine Gray Ms Evgeniya Rubinina Professor Freya Baetens Dr Jessie Hohmann Professor Philippe Sands QC Dr John Barker Dr Douglas Guilfoyle Dr Andrew Sanger Professor Catherine Barnard Professor Peter Harris Mr Daniel Saxon Dr Lorand Bartels Dr Gleider I Hernandez Professor Anat Scolnicov Professor John Bell QC Dr Kirsty Hughes Dr Jillaine Seymour Dr Eirik Bjørge Ms Jodie Kirshner Professor Malcolm Shaw QC Dr Antje Du Bois-Pedain Dr Francesco Messineo Dr Bart Smit Duijzentkunst Dr Anthony Cullen Dr Marko Milanovic Professor Eleanor Spaventa Dr Dominic De Cogan Dr Alex Mills Professor John Spencer QC Lld Dr Marie-Claire Cordonier Dr Jasmine Moussa Mr Christopher Thomas Segger Dr Jonathan Mukwiri Dr Kimberley Trapp Professor Simon Deakin Dr Eva Nanopoulos Dr Sophie Turenne Professor Andrés Delgado Professor Lorne Neudorf Dr Isabelle Van Damme Casteleiro Penelope Nevill Professor Guglielmo Professor Zachary Douglas Verdirame Dr Sarah Nouwen Dr Niamh Dunne Dr Michael Waibel Dr Patrick O’Callaghan Dr Matthew Dyson Dr Santiago Villalpando Professor Roger O’Keefe Dr Alex Oude Elferink Professor Marc Weller Dr Tiina Pajuste Professor Stefan Enchelmaier Dr Ralph Wilde Dr Martins Paparinskis Dr David Erdos Professor Sarah Worthington Professor Charles Garraway Dr Kate Parlett QC (Hon) Dr Markus Gehring Dr Surabhi Ranganathan Dr Rumiana Yotova Dr Joanna Gomula-Crawford Dr Pippa Rogerson Dr Sheng Zhang Dr Tom Grant Dr Solène Rowan Contents Editorial 383 Oliver Butler and Rajiv Shah I. Keynote Speeches Jurisprudence Without Confines: Private International Law as Global Legal Pluralism 388 Horatia Muir Watt Companies in the Strasbourg Courtroom 404 Dean Spielmann II. Long Articles Understanding the ‘New Governance’ of Food Safety: Regulatory Enrolment as a Response to Change in Public and Private Power 418 Paul Verbruggen Humanitarian Considerations in International Air Law 450 Laura Wanlu Zhang Regulating Sovereign Wealth Funds: When States Become Entrepreneurs 475 Gisela Mation Transnational Corporations as Agents of Legal Change: The Role of Corporate Social Responsibility 502 Neli Frost DOI:10.7574/cjicl.05.03.383 © Authors Editorial Oliver Butler* and Rajiv Shah** 1 Introduction Issue 5(3) showcases scholarship presented at the 5th Annual Conference of the Cambridge Journal of International and Comparative Law held at the Faculty of Law, University of Cambridge on 8th and 9th April 2016. The conference theme, ‘Public and Private Power’, sought to explore how the landscape of public and private power is changing, where new and important networks and partnerships between public and private power have been developed, and where public power is co-opting or commissioning private power in larger projects. This interconnectivity between public and private power is a trend at all levels. It challenges traditional divisions between public and private bodies. This is being explored in current debates on pluralism and human rights. The theme was especially suited to the international, comparative and EU perspectives of the journal because public and private power raise new problems and opportunities for regulation in each of these areas of law. Presentations at the conference emphasised the role of globalism and pluralism in blurring the public-private divide across a diverse array of fields. Keynote papers were presented by Professor Horatia Muir Watt, from Science Po, Paris, and Judge Dean Spielmann, former President of the European Court of Human Rights, and now a judge of the Court of Justice of the European Union. The conference was well attended with approximately 100 delegates, made up of academics, students and professionals. 40 presentations were made across 9 panels on standard-setting, tax, economic power, technology, control of private power, food regulation, armed conflict, alternative dispute resolution, and the subjection of public entities to private norms. The conference also launched two books: Mislav Mataija, Private Regulation and the Internal Market (2016) and Darryl Keith Brown, Free Market Criminal Justice (2016). Six papers, including the keynote presentations, were selected after peer review for publication. * PhD Candidate, Emmanuel College, University of Cambridge. ** PhD Candidate, Downing College, University of Cambridge. (2016) Vol 5 Issue 3 Cambridge Journal of International and Comparative Law 383 Oliver Butler and Rajiv Shah 2 Overview of Issue 5(3) In the first keynote address, Professor Muir Watt asks whether private international law has continuing relevance to modern legal theory, given radical change in the normative landscape beyond the nation state resulting from globalisation. In particular, she asks ‘whether private international law might fit within an ambitious strand of legal pluralism’ and argues that private international law has the potential for revival within the context of pluralism as an explanatory and normative framework. She observes that there has been an emergence of ‘eminently pluralist understandings of law-making power’. These understandings ‘hark back to the body of knowledge which first emerged in a pre-modern context of plural authorities, unchartered territories, and indeterminate boundaries between the public and private spheres’. They mean that private international law has the potential to contribute ‘principles with which to govern non-state authority, infuse hybrid normative interactions with ideas of tolerance and mutual accommodation and ensure accountability in the global decision-making processes through deliberation, contestation, and recognition’. In his article, Verbruggen pursues this ‘pluralist understanding of law- making power’. He considers how private bodies contribute to regulation by examining changes in the institutions and practices of food governance since the 1990s. Verbruggen argues that change has occurred in two ways: (1) the subjection of national systems to transnational influences; and (2) the interaction between public food governance and private governance systems. Verbruggen shows how ‘an increased level of coordination between public and private regulatory activities, more and more frequently transcending national (jurisdictional) boundaries’ is best approached through the lens of New Governance and regulatory enrolment. Verbruggen seeks to show the potential for enrolment as a governance response to the rise of global supply chains where regulation is decentered and a variety of public and private actors build regulatory capacity in new, uncertain and complex circumstances. However, this ‘pluralist understanding of law-making power’ can lead to fragmentation and to associated problems. Zhang considers the consequence of such fragmentation for air law with particular relevance to flights over conflict zones. This is an issue that was starkly raised following the downing of flight MH17 over the Ukraine. There is a potential conflict between five sets of norms: (i) the Chicago Convention of International Civil Aviation;
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