Chapter 7: Transnational Legal Process Theories

Abstract

This Chapter of The Oxford Handbook of International Adjudication is devoted to transnational legal process theories. The main thrust of the Chapter is that the field of transnational legal process theories has proceeded without the benefit of conceptual clarity regarding the key underlying concept: the concept of a/the ‘legal process’ and that a myriad of partly-overlapping concepts — such as international adjudication, supranational adjudication, and transnational litigation — are used interchangeably, willy-nilly. This, in turn, may be explained by three observations. First, that the relevant discourse attempts, by design of the field’s forefathers, to capture both transnational public adjudication and private transnational commercial adjudication (international arbitration) within a single framework. Second, is the tendency to group together international adjudication — arbitration and litigation in international courts and tribunals — and cross-border litigation — litigation with a foreign component in national courts. Third, is a theory deficit — little has changed since Harold Koh observed a “void in legal scholarship” in the mid-1990s, despite the explosion of international adjudication at that time.

The Chapter opens with definitions of ‘transnational legal process(es)’ and with a brief history of the concept. The main section presents some of the leading theories, grouped based upon the underlying perspective of the theorists: The lawyers and legal theorists; the political science and international relations theorists; and the sociologists and socio-legal theorists. In addition to describing these dominant approaches, the Chapter highlights competing methodologies and key themes, such as the internationalization of the rule of law and its discontents and the intended and unintended consequences of the transplantation of institutional models. The Chapter concludes with some general observations and with a number of suggestions for further research.

Keywords: transnational legal process theories, international adjudication, supranational adjudication, transnational litigation, international law, international arbitration, cross-border arbitration, international courts, international tribunals

JEL Classification: K10, K33, K41