vol 20 | no 4 | fall 2009

the center on and globalization center on law and globalization

The Center on Law& Globalization

It has become a truism verging on cliché to say that we live in an increasingly globalized age. In the last two decades “globalization” has become one of the most popular buzzwords in business circles, the media, and academia.

et, there is no denying that states, multi-national activist interest regulations” (UNCITRAL, 2004). changes in technology and groups and other actors are increas- But how, exactly, do these norms communications have mini- ingly defining global legal “norms” to originate? How are they propagated, Ymized constraints of time and geog- facilitate the flow of information and adopted and enforced? What hap- raphy, resulting in global exchanges commerce, to pursue justice for crimes pens when global norms encounter of people, information, ideas, prod- committed in internal or cross border local politics, and customs? ucts and commerce of unprecedented acts of war, to delineate standards for These and other questions frame speed and intensity. The effects of this combating climate change, and for the research agenda of the Center on interconnectedness can be observed promoting food safety and health. Law and Globalization, a joint ven- in markets, politics, health, educa- In 2004, for example, the United ture between the American Bar Foun- tion, migration and military conflict, Nations Commission on Internation- dation and the University of to name just a few realms of human al Trade Law (UNCITRAL) adopted College of Law. Founded in 2007, activity. Inevitably, law is implicated a “Legislative Guide on Insolvency and seeking to promote and dis- in all of these areas. Law” which was “intended to be used seminate the best research on law and In a move that is both a reaction as a reference by national authorities globalization, the Center has already to globalization and a driver of it, and legislative bodies when preparing emerged as a leader in its field. business groups, non-governmen- new laws and regulations or review- tal organizations, judges, sovereign ing the adequacy of existing laws and

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background and goals former Executive Vice President and conferences and Executive Director of the American colloquia in 2009 The Center on Law and Globalization Society of International Law, was (the Center) was conceived in 2006 appointed a Co-Director of the In 2009 the Center has focused its by ABF’s Terence Halliday and John Center, alongside Halliday, Hagan, scholarly sessions on the areas of Law Hagan, and Tom Ginsburg, then of Ginsburg and Ralph Brubaker, & Globalization of Markets and Law the University of Illinois College Professor of Law at Illinois. & Globalization of Human Rights of Law (now of the University of The Center engages in two major and Security. Law School). Halliday, activities to achieve its goals. First, it Hagan and Ginsburg recognized sponsors colloquia at venues around imf governance the critical importance of law in a the world to share the most up-to- and imf lawmaking globalized context, yet also noted date research on law and globaliza- that empirical research on law tion, bringing academics, policy The Center organized a colloquium, and globalization is in its infancy. makers, diplomats and journalists jointly with the International Mon- Similarly, the study of the legal together in fruitful exchanges. Second, etary Fund, and in association with dimensions of globalization is segre- to reach a much broader audience the American Society of Interna- gated by discipline, so that those who on an ongoing basis, the Center has tional Law, March 25-28, 2009, in study human rights, for example, created “Smart Libraries,” pages on the Washington D.C., on “International rarely talk to scholars of business law. Center’s website (www.lexglobal.org) Monetary Fund Governance Reform At the same time Hagan, Halliday that offer the latest and best research and its Broader Implications for the and Ginsburg noted a paucity of on law and globalization in a variety IMF’s Work.” Conference organiz- opportunities for scholars to engage of formats from easy-to-digest sum- ers, recognizing the critical role the in dialogue and exchange with global maries of leading research, to defini- IMF plays in the global financial policy makers and journalists. Thus, tions of key concepts, to extensive crisis of 2008-09, raised the question the Center was proposed to both bibliographies. The substantive areas of the links between the IMF’s gov- stimulate and disseminate research of focus of the Center capitalize on ernance, and its legitimacy and ef- on law and globalization as well as to the research strengths of professors fectiveness. The conference addressed create a meeting place for the “think- at the ABF and University of Illinois the recommendations of the Manuel ers” and the “doers.” College of Law as well as those of Committee Report, released days be- The Center was proposed to other affiliated scholars. The current fore the colloquium, for governance the Executive Committee of the research areas of the Center are: reform at the IMF, its implications Board of Directors of the ABF in for the IMF’s global activities, and its January of 2007, and they and the • Law & Globalization potential impact on governance University of Illinois College of Law’s of Human Rights and Security reforms of other international finan- Board of Visitors approved the idea • Law & Globalization cial institutions and international in a meeting on October 27, 2007, of Markets governance bodies. agreeing to fund it jointly for a six- The program was moderated year period. Charlotte Ku, Assistant • Law & Globalization by Hans Corell, former United Dean for Graduate and Interna- Related to Health Nations Legal Counsel, and a mem- tional Legal Studies at Illinois, and ber of the Center’s International vol 20 | no 4 | fall 2009 researching law 2 center on law and globalization center on law and globalization

stockholm | june 23, 2009 stockholm prize in criminology

On June 23, 2009 Center Co-Director John Hagan, along with co-recipient Raúl Zaffaroni of the Supreme Court of Argentina, was awarded the Stockholm Prize in Criminology for his groundbreaking work on genocide in the Balkans and in Darfur. As the Criminology Prize Committee noted, “John Hagan pioneered the application of advanced crime measurement techniques to the study of genocide in his work on violence in Darfur and in the Balkans. Using systematic methods of estimating crime volumes from victimization surveys, Hagan and his colleagues found substantial under-counting of murders by the State Department and the World Health Organization. Their methods produced evidence of between 200,000 and 400,000 homicides, the worldwide reporting of which transformed the discussion of the Darfur tragedy.”

On June 23, 2009 the Stockholm Prize in Criminology was awarded to John Hagan (left) of the ABF and Northwestern Uni- versity, and Raúl Zaffaroni (right) of the Supreme Court of Argentina, by Swedish Minister of Justice, Beatrice Ask. Photo by Pernille Tofte.

Advisory Board. Participants in a day The session was sponsored, in part, by Approaches to Evidence.” Inspired of public and closed sessions includ- Sullivan & Cromwell, LLP. by John Hagan’s research on docu- ed Sean Hagan, General Counsel, menting genocide in the Balkans International Monetary Fund, and systematic and Darfur, the conference focused Kenneth Dam, sexual violence on the opportunities and challenges and Member, Manuel Committee on and international posed by using social scientific data International Monetary Fund Gov- criminal law in the prosecution of war crimes. ernance, and the General Counsels The conference, co-sponsored by The of the World Bank, International In June, the Center co-sponsored Grotius Centre for International Finance Corporation, World Health a large conference in The Hague Legal Studies, Leiden University, The Organization, and World Intellectual entitled “Sexual Violence as Inter- Hague, the Dutch Ministry of Foreign Property Organization, among others. national Crime: Interdisciplinary Affairs, the International Victimology

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the hague | june, 2009 interdisciplinary colloquium on sexual violence as international crime

Justice Richard J. Goldstone (center), former Chief Prosecutor of the International Criminal Court Tribunals for the former Yugoslavia and Rwanda, and current lead investigator for the UN Human Rights Council fact-finding mission on the Gaza conflict, addresses the closing session of the Interdisciplinary Colloquium on Sexual Violence as International Crime, held at the Peace Palace, The Hague, June 2009. Flank- ing Justice Goldstone are (left to right) Willem van Genugten, The International Victimology Institute Tillburg (INTERVICT), Justice Teresa Doherty, Special Court for Sierra Leone, and Terence Halliday, Co-Director, Center on Law and Globalization. Photo by Martijn van Dam.

From left: Professor Nico Schrijver, Grotius Centre for International Legal Studies, Leiden University, Dean Bruce Smith, University of Illinois College of Law, John Hagan, and International Criminal Court Prosecutor Luis Moreno-Ocampo , Judge Theodor Meron, International (left) addresses participants at the Center on Law and Globaliza- Criminal Tribunal for the Former Yugoslavia, Dutch Minister of tion’s Interdisciplinary Colloquium on Sexual Violence as Interna- Foreign Affairs Maxime Verhagen, Judge Navanethem Pillay, Unit- tional Crime, hosted by the Grotius Centre for International Legal ed Nations High Commissioner for Human Rights, Prosecutor Luis Studies, Leiden University, The Hague, June 2009. Moreno-Ocampo, International Criminal Court, all participants Photo by Martijn van Dam. in the Interdisciplinary Colloquium on Sexual Violence as Interna- tional Crime, June 2009. Photo by Martijn van Dam.

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Institute Tillburg (INTERVICT), Luis Moreno-Ocampo spoke to Tillburg University, and LexisNexis, the gathering about his work as the was attended by more than 180 first prosecutor of the International experts in international law, global Criminal Court, whose mandate health, social science, and human is “to put an end to impunity for rights, including ABF’s John Hagan the most serious crimes of concern and Terence Halliday. to the international community, The opening session, hosted by including gender crimes as part of Maxim Verhagen, Dutch Minister genocide, crimes against humanity of Foreign Affairs, featured key- and war crimes, and to contribute note addresses by Judge Theodor to the prevention of such crimes.” Meron of the International Crimi- He stated that in pursuing these nal Tribunal for the Former Yugo- goals the Court has “benefited ex- slavia, Navanethem Pillay, United tensively from the expertise of in- Nations High Commissioner for United Nations High Commissioner for ternational and non governmental Human Rights, and Luis Moreno- Human Rights, Navanethem Pillay ad- organizations” including “a number Ocampo, Prosecutor, International dresses the Interdisciplinary Colloquium of experts who are here this week.” on Sexual Violence as International Crime, Criminal Court. The Hague, June 2009. Photo by Martijn Moreno-Ocampo welcomed the Navanethem Pillay, in her van Dam. contributions of social scientists address, “Sexual Violence: Standing in developing methodologies that by the Victim,” spoke about the need of human trafficking: “The underly- can be used to pursue international for international justice to “address ing rationale of the anti-trafficking justice. “One of our goals is a case the real experience of sexual vio- protocol is that an individual can- with no witnesses, no victims. We lence” during armed conflict “from not freely consent to be trafficked… want to use methods that you are the victim’s perspective.” The inter- Effective investigative methodology developing, such as statistical analy- national courts have established that can probe the conditions of work and sis. We must refine how to use your “rape during international or inter- the level or absence of remuneration tools,” Moreno-Ocampo stated. nal armed conflict is a war crime, a as indicators of labor exploitation. crime against humanity, and may It follows that, technically, it is en- global lawmaking constitute an element of genocide.” tirely possible to investigate and pros- However, Pillay noted that the issue ecute trafficking without the need for When the American Bar Associa- of “consent”—absurd as it may be in the victim to actually testify. Thus, tion met for its Annual Meeting the context of armed conflict—still a good prosecutor should be able to in Chicago in July, the Center of- plays a role in prosecutions of rape, argue a case without individual testi- fered a Continuing Legal Educa- requiring victims to engage in painful mony by establishing the planning, tion seminar, co-sponsored by the detailed recounting of the crime. the modus, and the effects of the ABA Section of International Law, Pillay offered a novel method of crime. I submit to you that the appli- entitled “How International Orga- prosecuting rape without requiring cation of this approach to investiga- nizations Craft Global Laws: The detailed testimony from victims by tions of rape in armed conflict could Case of Corporate Bankruptcy Re- drawing a parallel to the prosecution also yield optimal results.” gimes.” Terence Halliday convened

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chicago | july 31, 2009 center inaugural reception

On July 31, 2009, in conjunction with the ABA Annual Meeting in Chicago, the Center on Law and Globalization hosted a recep- tion at Fulton’s on the River for alumni of the University of Illinois College of Law who are also Fellows of the ABF. The purpose of the gathering was to introduce those individuals who have a connection to both institutions to the activities of the Center on Law and Globalization. ABF Director Robert Nelson welcomed the group and introduced Bruce P. Smith, Dean of University of Illinois College of Law, and Center Co-Directors Terence Halliday and John Hagan. Smith, Halliday and Hagan all addressed the group about the importance of the Center in promoting and disseminating the best research on key issues of law and globalization, and Hagan was recognized for his recent award of the Stockholm Prize in Criminology for his groundbreaking work on genocide in Darfur. The general Fellows of the American Bar Foundation reception followed immediately at the same location.

From left: University of Illinois College of Law alumni and ABF Center on Law and Globalization Co-Director Charlotte Ku (left) Fellows J. David Andrews and Richard L. Thies speak with ABF speaks with Miraim Shearing, retired Chief Justice of the Supreme Board Member Jonathan Cole, at a reception for ABF Fellows Court of Nevada and ABF Life Fellow, at a reception for ABF and the Center on Law and Globalization, Fulton’s on the River, Fellows and the Center on Law and Globalization, Fulton’s on the Chicago, July 31, 2009. Photo by John Zich, 2009. River, Chicago, July 31, 2009. Photo by John Zich, 2009.

the session with introductory remarks the world.” To address this question sovereign states. and a research presentation. Calling Halliday and co-researcher Susan Halliday and Block-Lieb focused global norm-making “one of the most Block-Lieb of Fordham University particularly on UNCITRAL, scru- important issues of the next decade studied the attendees of global law- tinizing the backgrounds of the or two,” Halliday posed the ques- making forums in the wake of the attendees as they worked to produce tion, “Who is exercising what kind of Asian financial crisis of the late 1990s. UNCITRAL’s “Legislative Guide on influence on the global laws that are Forum attendees came from inter- Insolvency Law.” They found that developed,” and commented, “this national financial institutions, inter- the meetings were attended most is an absolutely fundamental ques- national organizations like the United consistently, and with the strongest tion for the legitimacy of global laws Nations Commission on Interna- delegations (in terms of professional and the likelihood that they will be tional Trade Law (UNCITRAL), depth), by delegations from countries enacted and… implemented around professional organizations and with advanced economies. “Based on

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chicago | july 31, 2009 aba cle program

Panelists for the ABA CLE program, “How International Organizations Craft Global Laws: The Case of Corporate Bankruptcy Regimes,” (left to right) Leonard Gilbert, Terence Halliday, Ralph Brubaker, and Steven Kargman, Chicago, July 31, 2009. CGPA Photogra- phy/Chris Buzanis.

our statistics,” Halliday noted, “the Leonard Gilbert, partner, Hol- bodies when preparing new laws Legislative Guide on Insolvency Law land & Knight LLP, co-chair of and regulations, or reviewing the is very much going to be influenced the International Bar Association’s adequacy of their existing laws.” by orientations of advanced coun- Section on Insolvency, Restruc- But as Gilbert stressed, the Guide tries. It’s going to bear the expertise turing and Creditors Rights, and is just an aid to national lawmak- of international associations of pro- ABF Life Patron Fellow, followed ers; there is nothing proscriptive or fessionals, but predominantly it’s Halliday with a presentation on the obligatory about it. going to be influenced by the United particulars of the UNCITRAL Legis- That the adoption of global States.” (Halliday and Block-Lieb’s lative Guide on Insolvency Law. The legal norms is hardly a straightfor- research has been published in many Legislative Guide was adopted by ward “top down” process was made journal articles, and features as well UNCITRAL in 2004, according to clear by the next presenter, Steven in the book Bankrupt: Global Law- Gilbert, “to assist in the establish- Kargman. Kargman, President of making and Systemic Financial Crisis ment of an efficient and effective Kargman Associates, a New York (Stanford University Press, 2009) legal framework to address the finan- City-based strategic advisory firm by Halliday and ABF Visiting Schol- cial difficulties of debtors. The Guide specializing in restructurings, spoke ar and Northwestern University is intended to be used as a reference about “how these international sociologist, Bruce Carruthers.) by national authorities and legislative norms are translated into practice…

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how things actually play out, with states…and lots can happen in the • A colloquium to be held in a focus on emerging markets.” politics of enactment and implemen- Geneva, Switzerland in 2010 Kargman relayed anecdotes about his tation. That creates something of a on “Governance and public- experience working on debt restruc- feedback loop for the further devel- private partnerships in mat- turing in emerging markets such as opment and refinement of global ters of health, food safety, and Brazil, China, Mexico, and Indone- norms, which feeds further cycles trade.” The colloquium will sia. As Kargman conveyed, among of recursivity—sort of an incremen- address how the increasingly the factors complicating the adoption talism in the development of global hybridized system of markets and implementation of global norms norms and standards. Recursivity, and regulation create special in emerging markets are national and I think, is a very powerful concept for challenges for world-leading local politics, customary business understanding how we make progress institutions such as the World practices, and judicial corruption. in global lawmaking.” Trade Organization and the Finally, Professor Ralph Brubaker World Health Organization. of the University of Illinois College of future activities How can public and private Law spoke. He began by remarking on sectors join forces to maximize how much progress has been made in The Center is planning several their respective resources? How a relatively short period of time in the colloquia and conferences in the can new models of regulatory area of international bankruptcy law. next year: governance and accountabil- The process of global norm making ity permit public and private is characterized by incrementalism, • A regional academic collo- organizations to work together making this progress all the more re- quium, “Globalization of Law, cooperatively and effectively? markable. Brubaker lauded Halliday International Organizations, • Several publications, including and Carruthers for their identifica- and International Law,” journal symposiums and edited tion and development of the theory in cooperation with the books, are planned. of “recursivity” in global law mak- International Organizations/ ing. Brubaker commented, “I think International Law working one of the most powerful insights group of the Buffett Center of Terry’s book (Bankrupt: Global more information on for International and the center on law and Lawmaking and Systemic Financial Comparative Studies, globalization can be found Crisis, 2009) is what he and co-author Northwestern University. on the center’s website: Bruce Carruthers, call the recursiv- www.lexglobal.org • A continuation of the meetings ity of global lawmaking or cycles of between Center faculty, recursivity in global lawmaking that if you are interested in international scholars, and has, I think, power well beyond this supporting the center on law and international financial globalization or other important insolvency context. What they mean abf initiatives, please contact institutions on global by ‘recursivity’ is where global norms lucinda underwood, governance and lawmaking. are articulated—for example, by abf development office, at 312.988.6573 UNCITRAL—but then must be • A follow-up conference at enacted and implemented at the The Hague on sexual violence national level by independent nation- and child soldiers.

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mission statement

The Center on Law and Globalization brings together advance participatory democracy and to help global leaders of international organizations, journalists, and and local leaders better understand the constraints, legal scholars to understand the legal dimensions of key ideologies, and difficulties of advancing global agendas global issues, to stimulate exchanges on how these issues in a world of nation-states. are addressed, and to advance research and conclusions on major topics in global debates. To open public debate on global issues to a wide global audience, the Center is pleased to introduce an interactive The Center focuses on international human and legal website, providing easy access to ground-breaking rights issues, notably justice and security, the interna- research on its principal issues through its unique Smart tional economy and marketplace, and health. Libraries where the best research has been transformed into easily accessible executive summaries. The website By advancing social scientific understanding of global offers a rich range of research and teaching materials for law, global legal institutions and global legal behavior, all specialists in higher education, international organi- Center scholars lay foundations for potential solutions. zations and international journalism.

The Center on Law and Globalization aims explicitly to Based on the background research and thorough help international legal audiences, such as the United examination of each situation, the Center can assist Nations Commission on International Trade Law, the in identifying specific problems and provide concrete Hague Courts, and the International Monetary Fund, recommendations to better society and help global to advance the research and scholarly frames available leaders advance the effective use of law and justice in a to global leaders, to enable national legal professions variety of international situations. to catch a vision of the contributions they can make to

www.lexglobal.org center on law and globalization center on law and globalization

international advisory board directors affiliated faculty continued

Gian Luca Burci Ralph Brubaker Carol Heimer Legal Counsel Co-director, Center on Law & Globalization Professor of World Health Organization Professor of Law; Guy Raymond Jones Faculty Northwestern University Geneva Scholar University of Illinois College of Law Research Professor, American Bar Foundation James H. Carter Thomas Ginsburg Richard L. Kaplan Sullivan & Cromwell LLP Co-director, Center on Law & Globalization Peer and Sarah Pedersen Professor of Law New York Professor of Law University of Illinois College of Law The University of Chicago Law School Hilary Charlesworth Patrick Keenan Visiting Faculty, American Bar Foundation Australian National University Professor of Law Canberra John Hagan University of Illinois College of Law Co-Director, Center on Law & Globalization Hans Corell Jay P. Kesan John D. MacArthur Professor of Chairman, Board of Trustees Professor of Law; Director, Program in Sociology and Law, Northwestern University Raoul Wallenberg Institute Intellectual Property and Technology Research Professor, American Bar Foundation Former Under-Secretary-General for Legal Af- Mildred Van Voorhis Jones Faculty Scholar fairs and The Legal Counsel, United Nations Terence Halliday University of Illinois College of Law New York Co-Director, Center on Law & Globalization Peter B. Maggs Research Professor, American Bar Foundation Sean Hagan Clifford M. & Bette A. Carney Chair in Law Adjunct Professor of Sociology, General Counsel University of Illinois College of Law Northwestern University International Monetary Fund Andrew P. Morriss Washington, DC Charlotte Ku H. Ross & Helen Workman Professor of Law Co-Director, Center on Law & Globalization Edward Kwakwa and Professor of Business Assistant Dean for Graduate and Legal Counsel University of Illinois College of Law International Legal Studies World Intellectual Property Organization University of Illinois College of Law Alberto Palloni Geneva Board of Trustees Professor of Sociology Antonio Mendes affiliated faculty Northwestern University; Collaborating Pinheiro Neto Advogados Scholar, American Bar Foundation São Paulo Larry E. Ribstein Jernej Sekolec Associate Professor of Mildred Van Voorhis Jones Chair in Law Secretary Northwestern University University of Illinois College of Law Visiting Faculty, American Bar Foundation United Nations Commission on Gregory C. Schaffer International Trade Law John L. Comaroff Melvin C. Steen Professor of Law Geneva Harold H. Swift Distinguished Service Profes- University of Minnesota sor of Ex officio : Cynthia A. Williams University of Chicago Robert Nelson Professor of Law Research Professor, American Bar Foundation Executive Director, University of Illinois College of Law American Bar Foundation William J. Davey Guy Raymond Jones Chair in Law (retired) Bruce P. Smith center staff University of Illinois College of Law Dean, University of Illinois College of Law Matthew W. Finkin Katie Harr Albert J. Harno and Edward W. Cleary Chair Program Associate in Law American Bar Foundation University of Illinois College of Law Allison Lynch Bryant Garth Program Associate Dean American Bar Foundation Southwestern University School of Law Christine Renshaw Director Emeritus, American Bar Foundation Assistant Director; Office of Graduate and International Legal Studies Henry Schultz Distinguished University of Illinois College of Law Professor of University of Chicago Research Professor, American Bar Foundation president copy editor Richard Pena Anne Godden-Segard researching law director An ABF Update designer Robert L. Nelson Quarterly Publication Bradley Sexton Designs Volume 20, Number 4 writer | editor Fall 2009 contact Katharine W. Hannaford email : [email protected] phone : 312.988.6500 www.americanbarfoundation.org

© 2009 American Bar Foundation. All rights reserved.