THE VALUE OF COMPARATIVE AND LEGAL CULTURAL ANALYSES OF INTERNATIONAL ECONOMIC LAW Colin B. Picker A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy UNSW University of New South Wales School of Law, Faculty of Law October, 2012 UNSW PhD (By Publication) THE VALUE OF COMPARATIVE AND LEGAL CULTURAL ANALYSES OF INTERNATIONAL ECONOMIC LAW By Colin B. Picker Submitted October, 2012 Associate Professor, Law Faculty, University of New South Wales, Sydney, Australia. A.B. (Bowdoin College), J.D. (Yale Law School). i PREFACE Thanks to Ross Buckley and Leon Trakman, my PhD supervisors, whose invaluable help and support made this dissertation possible. ii TABLE OF CONTENTS Part I: Background, Framework & the Methodology Chapter 1. Introduction to the Dissertation 1 Chapter 2. An Introduction to Comparative Analyses of International 27 Organizations in COMPARATIVE LAW AND INTERNATIONAL ORGANIZATIONS: COOPERATION, COMPETITION AND CONNECTIONS) (PUBL. OF SWISS INSTIT. COMP. L) (2013) (Lukas Heckendorn & Colin Picker eds.) (forthcoming 2013) Part II. Application of the Methodology – Case-Studies from IEL Chapter 3. International Trade and Development Law: A Legal Cultural 48 Critique, 4 LAW & DEVELOPMENT REVIEW NO 2: 4 (2011) pp 42-71 Chapter 4. China, Global Governance & Legal Culture: The Example of 79 China & the WTO in CHINA & GLOBAL ECONOMIC GOVERNANCE: IDEAS & CONCEPTS (PUBL. UNIV. TOKYO ISS) (Junji Nakagawa, ed.) (2011) pp 69-88 Chapter 5. WTO Governance: A Legal Cultural Critique in GOVERNANCE IN 100 CONTEMPORARY JAPAN (PUBL. OF UNIV. TOKYO INSTIT. SOC. SCI.) (Kenji Hirashima, ed.) (2011) pp 103-123 Chapter 6. International Investment Law: Some Legal Cultural Insights in 122 INTERNATIONAL TRADE AND INVESTMENT LAW: DEVELOPMENTS AND DIRECTIONS (Leon Trakman & Nick Ranieri, eds) (Oxford University Press) (forthcoming 2012) Chapter 7. Anti-Poverty v. The International Economic Legal Order? A 152 LegalCultural Critique in POVERTY AND THE INTERNATIONAL ECONOMIC LAW SYSTEM (Krista Nadakavukaren Schefer, ed.) (Cambridge University Press) (forthcoming 2013) Part III Applications, Insights and Recommendations Chapter 8. A Legal Cultural Analysis of Microtrade, 5 Law & Development 175 Review, No. 1, 101-128 (2012) Chapter 9. Conclusions, Specific Insights and Recommendations 205 Bibliography 227 iii DETAILED TABLE OF CONTENTS Part I: BACKGROUND, FRAMEWORK & THE METHODOLOGY Chapter 1. Introduction to the Dissertation I. Introduction II. The Thesis III. International Economic Law Research Methodologies IV. Comparative Law Research Methodologies V. Legal Culture A. Legal Culture in the Literature B. Legal Culture as Employed in this Dissertation VI. Legal Cultural Analyses VII. Comparative and Legal Cultural Analysis of International Law and International Economic Law VIII. Conclusion Chapter 2. An Introduction to Comparative Analyses of International Organizations I. Introduction II. Comparative Legal Cultural Analyses III. The Employment of Legal Cultural Analysis in International Law IV. Likely Pitfalls in a Legal Cultural Analyses of IOs A. General Errors in a Legal Cultural Analysis B. Errors Unique to the Analysis of IOs V. Some General Approaches for Legal Cultural Analyses of IOs VI. Identification of Legal Tradition & Culture Trends within IOs VII. Conclusion Part II. APPLICATION OF THE METHODOLOGY – CASE-STUDIES FROM IEL Chapter 3. International Trade and Development Law: A Legal Cultural Critique, I. Introduction II. A Holistic Analyses of International Development Law & Legal Culture A. The Legal Cultural Analysis: Similarities Between International Development Law and International Law B. Legal Cultural Analysis: International Development Sui Generis III. An Atomistic Legal Cultural Analyses of International Development Law A. Legal Cultural Analysis of the WTO & International Development Law 1. WTO’s Development Law is Akin to the Rest of the WTO 2. WTO’s Development Law is Different to the Rest of the WTO B. Domestic Implementation of International Development Law IV. Conclusion iv Chapter 4. China, Global Governance & Legal Culture: The Example of China & the WTO I. Introduction II. Issues Arising between China’s Legal Culture and the WTO A. Traditional Chinese Legal Culture - Confucianism & Legalism B. The Modern Period - Western (Continental) and Soviet Law III. Conclusion Chapter 5. WTO Governance: A Legal Cultural Critique I. Introduction II. WTO Governance 1. Be An Efficient Controller, Director or Regulator. 2. Be Rational, Predictable and Consistent 3. Balance The Short and Long Term Needs of its Constituencies 4. Operate According to Design 5. Act as a True Representative Body III. Legal Culture & WTO Governance 1. The DSB and Legal Culture 2. The Weak Power of the WTO as an Institution 3. The Lack of Change to the WTO Agreements IV. Conclusion Chapter 6. International Investment Law: Some Legal Cultural Insights I. Introduction II. Legal Culture III. Obstacles to a Legal Cultural Analysis of International Investment Law IV. The Legal Cultural Analysis A. The Legal Cultural Impact of Public International Law B. The Role of Language C. Participant Driven Legal Culture in International Investment D. The Diversity of the Field 1. Ideological Diversity 2. Power Diversity 3. International-Domestic Diversity E. The Dispute-Centered Development of the Field V. Conclusion Chapter 7. Anti-Poverty v. The International Economic Legal Order? A Legal Cultural Critique I. Introduction II. Legal Culture v III. Anti-Poverty Policies are not the same as Development Policies IV. IEL Anti-Poverty Policy Legal Cultural Characteristics A. An Individual, Personal, Relative and Subjective Tone B. A “Marginalization of Law” Legal Cultural Characteristic C. The Presence of Non-Western Legal Cultural Characteristics D. The Role of Agrarian and Rural Legal Cultural Characteristics V. Conclusion Part III Applications, Insights and Recommendations Chapter 8. A Legal Cultural Analysis of Microtrade I. Introduction II. Legal Culture III. Legal Cultures of Relevance to Microtrade A. Legal Cultural Issues Related to LDCs 1. The Presence of Non-Western Legal Cultural Characteristics 2. Rural/Agricultural Legal Cultures 3. Other LDC Factors a. Endemic Corruption b. Low Literacy and Education B. Other Legal Cultural Characteristics Relevant to Microtrade 1. Smallness 2. Developed Country Participants 3. The Legal Culture of International Law & International Trade Law 4. Legal Cultural Issues Associated with Gender 5. Legal Culture Issues of a Microtrade Organization IV. Conclusions Chapter 9. Conclusions, Specific Insights and Recommendations I. Introduction II. Legal Cultural Insights A. Insights on Legal Culture as a Methodology B. Insights on Legal Culture C. Insights on the International Legal Order III. Responses to Legal Cultural Disconnects IV. Conclusion Appendix – Short Form Legal Culture Impact Analysis Bibliography vi 1 CHAPTER 1: INTRODUCTION TO THE DISSERTATION I. Introduction II. The Thesis III. International Economic Law Research Methodologies IV. Comparative Law Research Methodologies V. Legal Culture A. Legal Culture in the Literature B. Legal Culture as Employed in this Dissertation VI. Legal Cultural Analyses VII. Comparative and Legal Cultural Analysis of International Law and International Economic Law VIII. Conclusion I. Introduction The effective development and operation of the law faces many obstacles. Among the more intractable yet hidden barriers to the law are legal cultural disconnects and discontinuities. These occur when opposing legal cultural characteristics from different legal cultures are forced to interact as part of the implementation of the law across two different legal cultures. That conflictual interaction can impede or block the success of that law. While present in domestic legal systems, those conflicts are more likely and the conflicts may be deeper between the many different legal cultures involved in the international legal order. For example, a successful interaction between traditional knowledge and the international intellectual property regimes may be frustrated by the disconnect between the individualism present within the legal culture of international intellectual property and the collectivism within many indigenous legal cultures.1 Identification of such legal cultural disconnects and discontinuities is the first step towards developing strategies to ameliorate potential conflicts between opposing legal cultural characteristics. That identification requires examination of the relevant legal systems with legal culture in mind—a legal cultural analysis. But, that methodology is rarely employed. To the extent we do see legal cultural analyses, they are applied almost exclusively in the domestic arena. When it is applied across legal systems it becomes a part of comparative law methodology. This merger of comparative law and legal cultural approaches is unusual, indeed almost unheard of in the international economic law (―IEL‖) context. This dissertation, the body of the PhD, will undertake just such a task to show it is possible and valuable, through the use of case-studies employing the methodology to identify such legal cultural conflicts. 1 See, e.g., Lorie Graham & Stephen McJohn, Indigenous Peoples and Intellectual Property, 19 WASH. UNIV. J. L. & POL'Y 313 (2005). 2 This dissertation is divided into three sections—methodology, case-studies, and insights and conclusions. The first and last sections in particular (Chapters 1, 2, 8, and 9) serving to unify the dissertation.