Bottom-Up Lawmaking through a Pluralist Lens: The ICC Banking Commission and the Transnational Regulation of Letters of Credit

Abstract

The international lawmaking stories that gain scholarly and popular traction are generally of a similar "top-down" genre, centering on state-based policymakers and contemplating treaties or intergovernmental institutions. Yet, much international law surfaces from the "bottom-up," from day-to-day private and commercial practices. This Article deploys core legal pluralism insights to narrate a rich bottom-up lawmaking tale that features private bankers, who have coalesced for decades under the auspices of the International Chamber of Commerce's Banking Commission to "codify" letter-of-credit practices in the form of the Uniform Customs and Practices (UCP). The UCP, however, is not mere self-regulation but rather a potent determinant of hard law, in this instance a multilateral treaty and Article 5 of the Uniform Commercial Code. This Article argues that bottom-up lawmaking sculpts the legal landscape as much as any treaty or diplomatic conference and thereby challenges prevailing international legal theory.