Tuesday, February 24, 2009

The GAL Bibliography is now live...

It is, I confess, a much-delayed announcement, but the Global Administrative Law Bibliography is now available online.

There are a number of challenges involved in presenting and maintaining a bibliography for an emerging field of this sort, vast in scope and rapidly increasing in popularity. The key issues are 1) ensuring that the resource is user friendly; and 2) ensuring that it is kept up-to-date, to the greatest degree possible, in as many areas as possible of this rapidly-developing field.

We have tried to confront these issues directly in the design of the bibliography, in two main ways. Firstly, we have tried to make it easier for users to navigate the wealth of information it contains - in the long-term at least - by introducing an "annotations" facility. Each entry has a cross in the top right-hand corner, and clicking on it will display the annotation where one is available. In this way, we hope, eventually, to be able to provide a more detailed account of the texts included than a title alone could offer.

Whence the second issue. Of course, annotating a bibliography of this size is a huge - not to mention Sisyphean - task. We have thus (magnanimously) decided to introduce a collaborative element to the bibliography, in order that users can suggest new entries and/or annotations simply by filling out this handy feedback form. The form can also be used for more general feedback/comments/criticisms on the resource in general. Any annotations published will, of course, be fully attributed.

Here is the structure of the bibliography, in full:

Bibliography homepage

I. The Field of Global Administrative Law
A. General Works
B. Global Administrative Law and International Law
C. Early/Historical Works

II. Global Norms for National Bodies
A. General
B. Trade, Competition and Intellectual Property
C. Foreign Investment
D. Development
E. Environmental Regulation
F. Others

III. Global Administrative Bodies
A. International Organizations - General
a. UN Security Council
b. UN Agencies
c. World Trade Organization
d. World Bank
e. International Monetary Fund
f. Others

B. Transnational Regulatory Networks
C. Hybrid Public-Private Bodies
D. Private Bodies with a Public Governance Function

IV. Issue-Specific Works
A. Accountability and Review
B. Transparency
C. Participation
D. Due Process
E. Fragmention, Defragmentation and Pluralism
F. Compliance and Effectiveness
G. Indicators as a Governance Tool

V. GAL Issues in Specific Regions
A. Europe
B. North America
C. Latin American and the Americas
D. Africa, the Gulf and the Middle East
E. South Asia
F. South-East Asia and the Pacific
G. East Asia

VI. Theoretical Works
A. Legal Theory
B. Political Theory
C. Democratic Theory
D. Postnational Constitutionalism
E. Legitimacy
F. International Relations Theory
G. Political Economy

VII. Other Related Works

Please do go and have a play around on it, and let me know what you think; and of course, feel free to use that feedback form...

Friday, February 20, 2009

Kevin Davis on "Can Lawyers Change the World?"

A fortnight ago, on Tuesday 3rd February to be precise, Professor Kevin Davis of NYU gave his inaugural lecture as Beller Family Professor of Business Law, entitled “Law, Lawyers, and Global Development: Can Lawyers Change the World?”. The lecture is of real interest from a global administrative law perspective, for two important reasons. Firstly, Professor Davis himself is a central (if sometimes skeptical) figure within the project, a regular participant in the many workshops that NYU has sponsored in various parts of the world, and he will be leading a major research project within the IILJ on “Financing Development”, which will contain a significant GAL component. Secondly, and of more immediate importance to this particular post, the content of this fascinating lecture can be read as posing some key challenges to the desirability of the GAL project as a whole. A video of the lecture is now available here.

In this post, then, I want to begin by outlining the substance of Professor Davis’ talk, before going on to offer some critical reflections from a GAL perspective. The very first thing I want to do, however, is to extend my warmest congratulations to Professor Davis on his inauguration as Beller Family Professor of Business Law: I’m very much looking forward to his contributions – to the global administrative law project in particular – over the coming months and years, in the field of development finance and beyond; they will, I have no doubt, be of the very highest – and constructively provocative – quality.

Law and lawyers: good or bad for development?
Davis set the scene with a few observations about the desirability of lawyers for economic development, noting that some economists have, in the past, even argued that there is a negative correlation between the number of lawyers in a country and its level of development. In opposition to this, he sketched what is by now by far the majority view – that legal institutions, and the lawyers that man them, can and do make a positive difference in encouraging economic development. He was also keen to stress, however, that there are two different arguments concerning the positive difference that lawyers can make: one at the “retail” level, in which lawyers assist on a case-by-case, client-by-client basis; and the other at the “wholesale” level, in which lawyers can bring about broader, systemic change in legal orders in an effort to secure the conditions necessary for economic development and growth. This second argument he traces back to the Nobel prize-winning economist Douglass North for his work on linking the rise of Western Europe to the institution of effective regimes of property rights and contract enforcement. (We could perhaps go back even further, however; claims of this sort seem central to Marxist thought, and something very similar to this argument – albeit, perhaps, expressed in a different vocabulary – had already been worked through in 1924 by the Soviet legal theorist Evgeny Pashukanis, in his book on The General Theory of Law and Marxism). These different levels of optimism about the potential role of lawyers assumes some significance later on.

Davis accepted the basic thrust of this position – that law and lawyers can have a positive impact upon development – but immediately looked to problematise a claim that, to him, many accept far too easily as a corollary: the idea that there is thus a universal, “one size fits all” template for the “effective” legal/judicial system, and that this simply needs to be transplanted into whichever country in the world is experiencing developmental difficulties for these to vanish. The bulk of the rest of the lecture was devoted to criticizing three different “universalist approaches” – in terms, however, that were clearly intended to move beyond the examples he gave and apply to all “one size fits all” legal reform projects. One point that did link each of the approaches that Davis discussed here, however, is that they all rely, to some degree, on empirical, social scientific data collection and “measurement” in making their claim to be desirable templates for universal law reform; the extent to which this might impact upon his conclusions is something to which I will return briefly below.

Davis suggested three main obstacles or objections to any universalist approach to global legal reform. The first is the normative claim that different people, different societies have radically divergent values, and that the law can be calibrated in different ways in order to further different goals. The first objection, then, is that universalist endeavours simply ignore value pluralism. Secondly, Davis pointed to the importance of local substitutes for what are (perceived to be) important legal reforms, meaning that scarce resources might be better applied elsewhere. Lastly, he also signaled the crucial role that certain complements can play – elements that may, if not present in the target society, actually function to undermine the goals that the reforms in question were intended to further.

Three universalist approaches
Davis then went on to outline, and critique, three different “universalist’ law reform positions that have been suggested recently. The first, and least sophisticated, of these was what he referred to as the “common law” approach: the claim, based upon “the work of a very prominent group of economists at a number of Ivy League schools who have written a very influential, widely-cited set of papers that they summarized in a recent survey article this year”, that countries that adopt a common law system score better on many of the key indices of development (such as levels of investor protection, lower government regulation, less corruption, better labour markets and judicial systems, etc.) than did their civil law counterparts. This is then used in support of proposals for pretty wholesale systemic reforms.

To this, Davis opposed his three-pronged critical apparatus. The normative problem is that this approach is massively reductive in terms of radical differences over what societies want, and what developmental ends a legal system should further (he also pointed out, interestingly, that despite these intermediate findings, the works that he outlined previously had been unable to find evidence of a causal connection between the common law and levels of economic development itself). More fundamentally, he also noted that there may be some “intrinsic” ends that societies feel a civil law system furthers that are external – and superior – to its ability to promote development or otherwise. As an example of this, he discussed recent movements in the Caribbean to renounce the jurisdiction of the UK Privy Council, and instead to establish some form of Caribbean Court of Justice for hearing final appeals from courts in the region – despite the fact that the Privy Council brings with it all of the experience and expertise of one of the oldest common law jurisdictions in the world. This was summed up in the view of one commentator in terms of “self government being better than good government”. (Davis suggested that this is “paradoxical”, although I’m not entirely sure I see why. Certainly, if we accept the plausible proposition that self government and good government are two independent but valid normative goals, then any apparent paradox disappears – it is simply a statement of relative weighting).

The common law-fits-all approach also fails in terms of substitutes and complements. On the former, Davis notes simply that, even if there is a causal link between development and the common law, then many developed civil law countries have clearly found more than adequate causal substitutes. As to complements, Davis simply points out that, given the crucial role of judges in the common law system, transplanting it to any country that does not have the key complement of an independent and effective judiciary is likely to be profoundly counter-productive.

The second of the universalist approaches that Davis discussed was that offered by the World Bank’s Doing Business project (which made explicit use of the “one-size-fits-all” claim). That project involved an extremely broad data collection exercise in which the ease with which certain key economic transactions (property transfers, debt collection, etc.) could be conducted. Countries were then ranked along these lines, and encouraged to improve their positions in the relevant rankings. These rankings could then play a role in funding decisions of the Bank and other organizations, and as such can have a real impact.

Despite taking a more sophisticated, “functional” approach, Davis argued that this also fell foul of his three objections. Firstly, it is quite clear that (very) reasonable people might disagree with many of the Banks assertions as to what is desirable in a legal system (Davis took, as one example among many, the Bank’s belief that secured creditors should be able to enforce their rights as easily as possible, and take precedence over all others). As to substitutes, Davis told the story of a Ugandan lawyer’s reaction to the Bank’s finding that it took 30 days to set up a business in her country. This was certainly true in terms of formal rules; however, the informal network of lawyers was dense enough that, in almost all cases, it was unlikely to take more than 2-3 days wherever a local lawyer was involved. This, he argued, meant that there was a workable, informal solution that meant that scarce development resources would be better targeted elsewhere. Lastly, on the issue of necessary complements, Davis talked of the US in Afghanistan, and their “success” in reducing the time needed to start a business to 9 days. However, to actually become operational, it still took over a year, as all of the corruption had simply been shifted to the licensing phase. Thus, without the complement of an effective licensing system, the initial reform was effectively empty.

Lastly, Davis turned to what he termed a “procedural” universalist approach, although this was more based on a particular social science methodology than what we normally think of as proceduralism from a legal perspective (again, a point to which I will return below). This is the argument that no legal reform should be implemented without a fully controlled and randomised trial, of the same sort used for drugs (this is the example in which the social science slant of Davis’ choices, although present in all three, is most readily prominent). So, for any proposed reform in any given society, a controlled experiment should be run on a proportion of the relevant actors in that society before it can be legitimately extended to the society as a whole, and the results measured and evaluated in an objective manner.

Leaving aside the technical issues involved (e.g. is it even possible to “control” an experiment of this sort to the degree necessary?), Davis argued that this approach again fails to overcome his three hurdles. Firstly, although it doesn’t predetermine any substantive outcome, but rather a procedure to be followed, there are still normative concerns. For example, what are the ethics of using those in the treatment group as guinea pigs, particularly if those guinea pigs fear it may harm them? In terms of the other two obstacles, Davis argued that there may be more cost-effective ways of testing the proposed reform than through experiments of this type; particularly as, given the difficulties involved in designing, running and interpreting the results of such experiments, a crucial complement is to have a community of experts capable of doing so.

On the basis of the foregoing, Davis drew two conclusions – one pessimistic, and the other more optimistic (if fairly heavily circumscribed). The former is that “one-size-fits-all” approaches to law reform have to be abandoned; the universalist approaches simply cannot respond adequately to the three contextualist objections that he raised. Rather, solutions to problems have to be tailored to the context in which they are to be applied, meaning that, in his own words, “most of us in this room have relatively little to offer, at least in our capacity as lawyers, to the poor countries of the world because we know our own system”. So what, if anything, can lawyers do? In essence, what Davis is (relatively) optimistic about is their capacity to assist in a support role: helping to ensure that those with knowledge of the local conditions have the expertise (e.g. through information sharing) and the voice to bring about the required changes and to ensure those in power act in good faith. Lastly, he recalled the importance of working simply one case at a time, one client at a time – even if this only means encouraging clients to take contextual issues into consideration.

Some critical reflections
One of the questions posed to Professor Davis at the end of his lecture concerned just how far he intended his “contextualist” argument to apply: whether it was limited to the three – fairly controversial – examples of “one-size-fits-all” global norm generation that he had directly addressed, or whether instead it was a more general argument, applicable with equal force to, for example, the normative activity of the UN (be it in terms of treaties, standards, model laws, etc.). Davis’ response surprised me, at least:

I think I’m actually a pretty radical contextualist, so I would intend to cover those dimensions... Logicially, the argument would extend to any effort to have the same laws – and especially the same words – applied to every country; and so, if the claim is that that’s the best you can do for those countries, then I think that... that can’t be right. Now, if you’re saying as a pragmatic matter that this is the only way to achieve any sort of reform, that might be a different story... But if you want to argue that that’s going to generate good law, then I think that’s going to be a difficult argument to sustain. There’s also going to be a question of the legitimacy of these global actors, and the legitimacy of the products of their activities, when typically developing countries have a lot of trouble participating in those fora, having their voices heard. There aren’t many fora that matter, I don’t think, in which developing countries are happy with the amount of voice that they have... so I’m not particularly comfortable with the one-size-fits-all solutions that emanate from bodies other than the World Bank [either].

It is in many ways difficult to imagine a broader attack on the normative bases of the global administrative law project than that offered in this short passage. Crucially, it casts doubt on both “coordinates” of the project (which – in my view – are interacting dialectically in order to produce the whole). To recap this argument very briefly, we have seen empirical GAL scholarship split along two lines: those that examine the administrative law of global administrative bodies (the extranational coordinate, focusing on global subjects); and those that study the existence of global administrative law norms for national administrative actors (the domestic coordinate, focusing on global sources). In his response to the questioner, Davis effectively called into question both of these.

Firstly, his response to this particular question means that the entire lecture can be read as an attack on the desirability of global administrative law’s domestic coordinate (or, in the terms suggested in the original framing paper, on the element of “distributed administration” in global administrative law), which is largely about the development and implementation of a one-size-fits all set of administrative law rules that can be applied from sector to sector. The clearest example of this is perhaps the Aarhus Convention on environmental decision-making; however, it is in many ways the driving logic behind this entire section of the field, and can be witnessed in some of the administrative law provisions of the WTO agreements, in some of the pronouncements of the WTO’s Appellate Body, and also in much of the administrative law-type normative output of global administrative bodies themselves.

This tripartite distinction between the different global sources of GAL – treaties, judicial decisions and global administrative norm generation – is also important in the light of the second claim that Davis made pertaining to the legitimacy of the global processes that generate the one-size-fits-all proposals that he criticizes. The key question is, to what extent can increasing the legitimacy of the global source serve to overcome Davis’ contextualist objections? Might it be argued, for example, that treaties remain legitimate global sources of domestic administrative law given the required state mediation by an act of national ratification? Or that a legitimate global court might legitimately develop standards in this field? Is the function of Davis second point above – concerning the participation of developing countries in global administrative bodies – to undermine the power of the first, “radically contextualist” one? If so, we might suggest that the extranational coordinate of GAL – which aims precisely to increase voice and decrease disregard of marginalized interests in such bodies – could function to rescue the legitimacy of the domestic coordinate in a pleasingly circular fashion. All we need to do is increase accountability of and participation in these bodies and their one-size-fits-all approach to domestic administrative law reforms becomes legitimate.

Pleasing though this is, and plausible to an extent, I suspect that Professor Davis would find it a far from satisfying conclusion, for a number of different reasons. Firstly, it would only even purport to overcome the “normative” element of his objections; those relating to substitutes and complements would still remain. Secondly, there would be (very) plausible grounds to argue that often the acts of governments do not approximate particularly well to the collective will or values of those they purport to represent. The playing field of international politics cannot be levelled simply by a requirement of national ratification, or by the introduction of a formal right of participation or two; and this doesn’t even speak to the important issues of corruption or capture by vested interests. Thirdly, to accept this point would be to undermine what I took to be the central argument that Davis was making: that good solutions (in both normative and effectiveness terms) to concrete governance problems must of necessity reflect the particular circumstances and context in which they have arisen.

What hope for justifying global administrative law in this context? Here, I want to make a single tentative suggestion: that it is when faced with Davis three sets of contextualist objections – relating to the importance of values, substitutes and complements – that global administrative law distinguishes itself from all other “global law” projects. I can’t develop this in any real detail here, but I would go about forming a GAL-defence to Davis’ concerns along the following lines:

1) GAL (much like Davis’ “experimental” variant of universalism) does not seek to predetermine substantive outcomes, but focuses rather on the procedures by which such outcomes are obtained. Unlike that experimentalism, however, GAL is not limited to a particular type of scientific procedure (although, as I have argued elsewhere, there is no reason why it cannot be calibrated also to that end); to the contrary, it can be used to secure the conditions in which marginalized voices can be heard, and genuine local will-formation, genuinely reflecting local values, becomes possible.

2) This means, in turn, that we may be able to defend GAL (in the abstract at least – I’m talking here of potential, how this will cash out in any given context is of course a matter of real concern, to be contested anew in each new situation) as representing a universal (or at least universalisable) set of substitutes and complements; or, at least, in the case of the former, providing the conditions within which we can be relatively sure that the local substitutes that exist do not degenerate from informal workaround into institutionalised corruption

I suspect that my second claim here might benefit from a little further clarification and elaboration. Put simply, I am (tentatively) suggesting that, at its best, GAL in the domestic coordinate (that is, “one-size-fits-all” rules on accountability, transparency and participation for particular sectors of domestic administrative activity) can help to create the conditions in which 1) local, contextual will formation, that reflects more than simply the interests of the dominant local players, might be possible; 2) effective local particularities can be supported largely as is, while ate the same time reducing the possibility that they themselves will simply reflect, or come to reflect, local power relations; and 3) we can begin to reconcile a genuine concern for radically divergent values with the ever-present risk of mistaking local domination for local culture. To take some of the examples relied upon by Davis himself: an effective set of administrative law complements relating to transparency and accountability would have overcome the difficulty faced in Afghanistan, in which a successful reform simply relocated corruption to a different stage in the process of starting up a business; and – as one questioner suggested at the end of the lecture – a set of procedural guarantees would also ensure that access to the informal network of lawyers in Uganda that represented the local substitute there would be available to all on equal terms, and would be less open to other forms of patronage or abuse.

I want to conclude, however, with two more general – if related – reflections on Professor Davis’ lecture. The first relates to his choice of the three “universalist” approaches for discussion. As I noted above, all three are striking for their “scientific” bias – the idea that the governance of human affairs is something that can be properly universalized not because we all share the same values, but because “good governance” is in some sense objectively verifiable and quantifiable. While Davis presents these as “influential”, however (and they undoubtedly are so from an economics perspective), within the discipline of international law they appear, to me at least, to be fairly marginal positions (the exception here may be the World Bank’s “doing business” index, which has some real governance bite, but even that does not reflect the mainstream of international legal scholarship). The reason for this, I suspect, is that all three approaches are premised upon two basic assumptions that have few adherents amongst international lawyers: firstly, that they most important elements of human governance are in principle quantifiable (although this is a proposition that may be gaining some ground); and secondly, that “good governance” (of the particular type they identify) is in some sense objective – that is, it stands beyond local values as a universal good. In this sense, it is not surprising that Davis is able to level persuasive contextual normative concerns at each, as they are premised upon a theory that simply (and to my mind unpersuasively) rejects the relevance of values to their own approach. In this regard, his normative concerns, to some degree at least, risk talking past, rather than speaking to, the fundamentals of each approach.

Related to this, and on a more philosophical note, is my second concern. By attacking only these – what we might term “objective universalist” – one-size-fits-all approaches, there is a sense in which Davis makes his own task a little easier than it might otherwise have been. For while his contextualist (relativist) concerns seem to undermine the whole approach of each of his three examples (largely because they are based upon a different set of theoretical premises), their effect is much less radically destructive to some other global law approaches – as I think he implicitly recognized by including his second set of considerations, relating to the legitimacy of global bodies as currently constituted, in his response to the question on the broader applicability of his critique to, say, UN lawmaking. The implication being that, as suggested above, a more legitimate global body would make more legitimate – universal – laws.

When we move to these less extreme examples of global norms to be universally applied within domestic settings (less extreme in that they are not premised upon the neutrality, apoliticality or objectivity of their own claims), we begin to see that the debate is not properly one of universality versus contextualism, but rather – as always – of where to draw the line in any particular case. Only the crudest of normative relativists even attempt to claim that all localism everywhere must be respected in their entirety (and in my view lapse into philosophical incoherence in the attempt to do so); and very few today subscribe to the (in some ways) opposite position – that there is one normatively correct way of doing things, and that we know what it is. I suspect that Professor Davis, despite his claims of radical contextualism, would not fall into the former category: that is, I suspect that he would not argue that every and any local custom must be accepted (and indeed implicitly encouraged) by local law reforms. It is interesting to note in this regard Davis’ response to the question regarding the risk that informal workarounds become simple opportunities for corruption and abuse: he argued that it is for local communities to decide how much corruption in public authorities is tolerable. Quite apart from the practical difficulties of operationalising such a claim (how can the feedback mechanisms of a deeply corrupt political system be trusted to give an accurate account of local feeling?), I wonder just how far he would be prepared to push this: should a donor country or institution really – for normative reasons – have no say whatsoever in whether money goes to corrupt officials or not?

All of this speaks, to my mind, of the rhetorical (broadly conceived) limitations of framing an issue as complex as this in terms of a debate between universalism v. contextualism, or even generalism v. particularism. In practice, particularly since the advent of human rights, (almost) everybody accepts that there is the need for both universal and contextual norms, for the general and the particular: the debate is only really ever over the best balance of these things in any given context; and the criticism is not that something is “universal” per se, but rather that it is not contextual enough. Answering these questions, however, requires a set of argumentative resources that simply are not provided – at all – by the rhetorical framework of the universal/ contextual dichotomy. In this sense, the arguments offered by Davis cannot serve, beyond the three examples he uses (and others, if similarly-premised), to debunk all attempts at “one-size-fits-all” lawmaking. Rather, they provide us with one – extremely useful – half of a way of articulating the problems faced by attempts to formulate legitimate “global” law of this sort; problems that the global administrative law project itself – perhaps uniquely – provides significant resources for addressing.

Professor Davis was kind enough to clarify for me his point about the phrase "self-government is better than good government" being paradoxical:

...it has taken me a while to realize why I might have been the only person in the room who found the statement 'self government is better than good government' so intriguing. It is basically because I have an idiosyncratic interpretation of the term 'good government.' It stems from the fact that in Canadian constitutional parlance 'peace, order and good government' is often characterized more like an ideal than as a merely 'good' form of government. [Here is a Wikipedia entry that may give you a sense of what I had in mind] Consequently, I read the statement to mean something like 'self government is better than ideal government.' This may not quite qualify as a paradox, but it is a bit more interesting than the assertion that 'self government is better than ok government.' I should add, however, that upon reflection I am unsure whether even the author of the statement shared my understanding of the term "good government."

Thursday, February 19, 2009

Participation as a buzzword

William Easterly has an interesting post over at Aid Watch on "buzzwords" in development literature - focusing on an article that discusses the way in which the rhetoric of "participation" is used "to convey good intentions to give the 'power to the poor' over aid affairs, while never in fact ceding any such powers". Richard Stewart has made a similar point about the way in which using "accountability"as a slogan in global governance literature more generally has rendered it of little use analytically. Worth a read, anyway...

The UK and non-refoulement

Some time ago, I posted a suggestion that, from a certain perspective, the international law norm prohibiting the refoulement of people to countries in which they risk being tortured could be viewed as part of global administrative law. This norm, enshrined in Article 3 of the Convention against Torture, is now also undoubtedly part of customary international law, and quite possibly part of the body of jus cogens. I am even less sure than I was previously of the GAL-relevance of non-refoulement, and i haven't had achance to read the case carefully, so I'll keep this brief; but I wanted to mention it, because it's important: the recent judgment of the House of Lords that upholds an earlier decision that the radical Muslim cleric Abu Qatada can be deported to Jordan, on the basis of diplomatic assurances as to his treatment should he be handed over. The judgment was joined with the cases of two other individuals that the UK was seeking to deport to Algeria, raising many of the same issues.

The first thing that I want to note is that, in strictly legal terms, I cannot see that the judgment represents a departure from or an exception to the universal and non-derogable requirement of non-refoulement. Contrary to the suggestion in some newspapers, (The Guardian, for example), the deportation of Abu-Qatada has not been approved "in spite of fears he may be tortured" - this would clearly be in violation of the UK's obligations under both international and European human rights law (the latter being the explicit basis upon which this judgment was rendered). Rather, the Lords upheld a decision by the Special Immigration Appeals Commission that any fears of torture were in the circumstances of the present case unfounded.

Nonetheless, this judgment has been strongly criticised, both in the press and by international human rights NGOs, and it is easy to see why: it does seem to mark a significant shift in emphasis from both the SIAC's treatment of "diplomatic assurances", and the Law Lords' willingness to protect the rights of detainees more generally. In particular, the House of Lords refused to undertake a full review of the decision of the SIAC, holding that the restriction of appeals to questions of law only prevented them from doing so. Therefore, although all parties that "accepted that neither Algeria, in the case of RB and U, nor Jordan, in the case of Mr Othman, was a country to which the appellants could safely have been returned had the United Kingdom not received assurances from the respective Governments as to the way in which they would be treated" (para. 107), the Lords refused to consider whether the assurances actually did reduce the risk of torture below the "susbstantial" level necessary to activate the non-refoulement prohibition, viewing this as a question of fact on which they had no jurisdiction to rule. Rather, they insisted that "the only ground upon which those conclusions can be attacked on an appeal restricted to questions of law is irrationality" (para. 117).

This is a hugely important finding. The House of Lords has effectively denied itself the capacity to oversee the factual conclusions of the SIAC as to whether assurances effectively remove the substantial risk of torture, and has limited itself to the much narrower - and much harder to establish - issue of whether the SIAC had acted "irrationally" in finding so. To give an example of just how much leeway this gives the lower tribunal, consider the following discussion from the judgment relating to the proposed deportation to Algeria. The SIAC had affirmed that 4 conditions had to be met for assurances to be acceptable (para. 23):

i) the terms of the assurances had to be such that, if they were fulfilled, the person returned would not be subjected to treatment contrary to Article 3;

ii) the assurances had to be given in good faith;

iii) there had to be a sound objective basis for believing that the assurances would be fulfilled;

iv) fulfilment of the assurances had to be capable of being verified.

The Lords then recalled that (para. 29)

So far as the fourth condition was concerned, the United Kingdom government had sought to persuade the Algeria Government to agree to monitoring, but had not succeeded. For reasons given in the decision in relation to Y, SIAC concluded that there was nothing sinister in this. There were other ways in which the performance of the Algerian assurances could be verified. British Embassy officials would be permitted to maintain contact with RB, if not in detention, and prolonged detention would itself be indicative of a breach of the assurances. Amnesty International and other non-governmental agencies could be relied upon to find out if the assurances were breached and to publicise the fact. Accordingly SIAC found that the fourth condition was satisfied.

This seems... unsatisfactory; apart from anything else, surely one of the purposes in ongoing monitoring is to enable potential breaches to be identified and prevented early, not simply actual breaches to be acknowledged ex post. Yet, despite these and other potential weaknesses, the self-limiting approach of the House of Lords meant that their review of this aspect of the SIAC's decision was limited to the following brief passages:

I have described earlier in this opinion the consideration given by SIAC to the reliance that could be placed on the Algerian assurances. This had particular regard to the general conditions in Algeria at the time that the assurances were given, the attitude of the Algerian authorities to the observance of human rights, the degree of control exercised by the Algerian authorities over the DRS, the internal security service, and the manner in which the performance of the assurances could be verified. SIAC paid careful regard to all relevant matters and applied to them the proper test of whether they amounted to substantial grounds for believing that RB and U would be at real risk of inhuman treatment if returned to Algeria.

SIAC gave consideration to the reasons why Algeria was not prepared to agree to monitoring and concluded that this was not indicative of bad faith and that there were alternative ways of ascertaining whether there was compliance with the assurances. These conclusions were not irrational. The contention that the assurances did not, on their true construction, protect against inhuman treatment was not well founded.

For these reasons the irrationality challenge to SIAC’s conclusions does not succeed. I would reject the appeals brought by RB and U.

This gives a pretty clear indication of the limited nature of the approach adopted by the House of Lords in this case: there is, it seems to me, a potentially huge difference between "there is no substantial risk of torture" and "it was not irrational to conclude that there was no substantial risk of torture". It's a long judgment, and there's a lot of important stuff in it that I haven't the time to read at present (including relating to the use of closed sessions in the Abu Qatada decision not only in relation to the threat that he posed to UK national security, but also in evaluating the risk of torture and the effectiveness of assurances - see paras. 76-98). In any event, even if the law remains effectively unchanged, this case does seem to indicate an important shift in emphasis in UK jurisprudence on the issue of assurances and non-refoulement.

An appeal has already been lodged before the European Court of Human Rights, and my own view is that they will block the deportation. Always risky, making predictions - on the upside, however, this one is likely to take at least two years, so even those few who have read this far are unlikely to remember it if I got it wrong...

A little more on GAL and science...

Just a quick post to highlight an interesting paper just published my Bruce McCullough and Ross McKittrick entitled "Check the Numbers: The Case for Due Diligence in Policy Formation" (hat tip to Steve McIntyre over at Climate Audit). The paper focuses on an issue that I have mentioned once or twice in the past - the transparency of the scientific work upon which major public policy decisions are taken (it is worth noting that one of the authors, McKitrick, was also a co-author with McIntyre on a number of papers critical of the "hockey stick" graph relied upon by the Intergovernmental Panel on Climate Change). Here's the blurb:

Empirical research in academic journals is often cited as the basis for public policy decisions, in part because people think that the journals have checked the accuracy of the research. Yet such work is rarely subjected to independent checks for accuracy during the peer review process, and the data and computational methods are so seldom disclosed that post-publication verification is equally rare. This study argues that researchers and journals have allowed habits of secrecy to persist that severely inhibit independent replication. Non-disclosure of essential research materials may have deleterious scientific consequences, but our concern herein is something different: the possible negative effects on public policy formation. When a piece of academic research takes on a public role, such as becoming the basis for public policy decisions, practices that obstruct independent replication, such as refusal to disclose data, or the concealment of details about computational methods, prevent the proper functioning of the scientific process and can lead to poor public decision making. This study shows that such practices are surprisingly common, and that researchers, users of research, and the public need to consider ways to address the situation. We offer suggestions that journals, funding agencies, and policy makers can implement to improve the transparency of the publication process and enhance the replicability of the research that is published.

The paper discusses a number of cases in which science has formed the basis for important policy decisions and in which, in the authors' view, significant questions have emerged over the full disclosure and transparency of the data and methods used in generating the results. Firstly, and in many ways most strikingly, the authors insist that the pre-publication "peer-review" process, often presented as the arbiter of sound science, is - or should be - only in fact the beginning of the results verification and replication process. They quote the editor of the prestigious journal Science as saying

What we can’t do is ask our peer reviewers to go into the laboratories of the submitting authors and demand their lab notebooks. Were we to do that, we would create a huge administrative cost, and we would in some sense dishonor and rob the entire scientific enterprise of the integrity that 99.9 percent of it has ... it all depends on trust at the end, and the journal has to trust its reviewers; it has to trust the source. It can’t go in and demand the data books.

The most important part begins, then, when articles are published, and other scientists begin to try to replicate the results. It is in order to facilitate this crucial part of the process that, the authors argue, full disclosure of all data, code and methods used is needed to make the replication process as straightforward as possible. Whatever one thinks of the scientific issues raised by the author - and here, as ever, I plead straightforward ignorance - I find it difficult to come up with reasonable counter-arguments against this claim.

From a global administration perspective, there are two points of particular interest: firstly, the authors outline the "hockey stick" controversy, in which the IPCC was a significant player; and secondly, they refer to another case involving climate science relied upon by an international organisation, in a passage worth quoting at some length:

In late 2004, a summary report entitled the Arctic Climate Impact Assessment (ACIA) was released by the Arctic Council, an intergovernmental organization formed to discuss policy issues related to the Arctic region. The council had convened a team of scientists to survey available scientific information related to climate change and the Arctic. Impacts of a Warming Arctic: Highlights (Arctic Council, 2004) was released to considerable international media fanfare, and prompted hearings before a US Senate committee on November 16, 2004 (the full report did not appear until August 2005). Among other things, the Highlights document stated that the Arctic region was warming faster than the rest of the world, that the Arctic was now warmer than at any time since the late 19th century, that sea-ice extent had declined 15 to 20 percent over the past 30 years and that the area of Greenland susceptible to melting had increased by 16 percent in the past 30 years.

Shortly after its publication, critics started noting on web sites that the main summary graph (Arctic Council, 2004, Highlights: 4) showing unprecedented warmth in the Arctic had never appeared in a peer-reviewed journal (Taylor, 2004; Soon, Baliunas, Legates, and Taylor, 2004), and the claims of unprecedented warming were at odds with numerous published Arctic climate histories in the peer-reviewed literature (Michaels, 2004). Neither the data used nor an explanation of the graph’s methodology were made available (Taylor, 2004; Soon, Baliunas, Legates, and Taylor, 2004). When the final report was released eight months later, it explained that they had used only land-based weather stations, even though the region is two-thirds ocean, and had re-defined the boundaries of the Arctic southwards to 60N, thereby including some regions of Siberia with poor quality data and anomalously strong warming trends. Other recently published climatology papers that used land- and ocean-based data had concluded that the Arctic was, on average, cooler than it had been in the late 1930s (Polyakov et al., 2002). But while these studies were cited in the full report, their findings were not mentioned as caveats against the dramatic conclusions of the ACIA summary, nor were their data sets presented graphically.

This example indicates that empirical claims in assessment reports may need to be audited if they present new data or calculations; or to ensure that the findings are based on published, peer-reviewed journal articles (which themselves can be audited) if the mandate of the panel doing the report is confined to citing only published research. It also highlights the importance of timeliness. If a summary document is released to great fanfare, and contradictory information is quietly disclosed eight months later, the later information may not affect the way the issue was framed by the summary.

Of course, it might be argued that even if the presentation of science, or even the science itself, is in specific instances not ideal, this can be overlooked where that science lends support to an overwhelming need to act quickly to avert catastrophe. However plausible this might seem in the realm of climate change (and I leave that an open question), it is open to a very familiar criticism: how can we, in the absence of properly enforced procedural guarantees, ensure that such examples of less-than-desirable method and practice are limited to those that lend their supprot to an overwhelming public policy objective? My suspicion is that this would be well-nigh impossible. Moreover, and more basically, I can't imagine that any scientist would find this type of pragmatic subversion of the scientific method to be an intellectually satisfying solution.

The authors conclude with a number of recommendations designed to increase "due dilligence" (transparency of data, method and code), aimed at journals, researchers, funding bodies, and policy-makers. There seems to me to be no reason that these recommendations could not be framed as requirements where public authorities rely on scientific work in taking important policy decisions, as part of a administrative law of science (indeed, it is worth noting that McIntyre is no stranger to the use of US Freedom of Information Act in order to get access to the data he desires). It may even be that we are beginning to see the emergence of this type of thing globally, as rules are developed on the legitimate use of science by administrative authorities (particularly here by the WTO, and the scientific evidence required to justify the adoption of trade-restrictive measures under either Article XX GATT, or the provisions fo the SPS and TBT agreements). This would be an interesting article, that I hope to have time to write one day...

As always, when writing blogs that refer to the Climate Audit site and to other works that might be seen as challenging the broad scientific consensus on climate change, I feel that a short disclaimer might serve to prevent misunderstanding of my position: I have no grasp whatsoever of the science involved in climate change - as discussed on either the Climate Audit or Real Climate sites, for example - and thus rely exclusively upon the weight of scientific authority. Here, it seems clear: that global warning is 1) happening; 2) our fault; and 3) very scary (although it might be worth mentioning in passing that I have never seen McIntyre "deny" any of these points). This is therefore not the place to discuss such issues; and I am not the person to discuss them with.

My interest in the Climate Audit site comes exclusively from the fact that regardless of the science, I find McIntyre's "due diligence" arguments to be compelling, due to a mixture of my interest in global administrative law, which I think could have an important role to play in ensuring that global public policy is based upon sound science; and my increasing amateur interest in what constitutes "good science" in general (which I owe almost entirely to this man).

Monday, February 16, 2009

Gordon Brown to lead the IMF?

Maybe; then again, maybe not...

On one hand, as Jackey Ashley writes in today's Guardian,

It starts with the 2 April London G20 summit. This will be an important moment, with lots of red carpet, as leaders queue to be photographed with President Obama. But as the world stares at full-blown depression, with countries such as China and Germany under huge pressure to do more to revive the global economy, it's a lot more important than that. What will actually come out of it? Well, there's one near-certainty: agreement about the need for a new global financial regulator, whether based inside or outside the IMF.

I'm told the German chancellor, Angela Merkel, has a favourite candidate to head this new body - Gordon Brown. She is said to be quietly pushing the idea behind the scenes and getting quite a good reaction from other leaders. Obama can be won over, says my source, and even Sarkozy would be pleased to see the man he's been tussling with off the European stage.

While, on the other, as Martin Kettle responds in the same newspaper,

...would Brown really be the right man for the revamped IMF? Even if – and it's a big if – there is a successful G20 that reforms the global financial institutions in the way that the British would like, it does not follow that Brown would be the right choice to run it. For one thing, as Jackie says, he is one of the many authors of the failed financial regime that the new IMF would be replacing. For another, the French and Germans would be very reluctant to lose their existing control of the IMF managing directorship to a British candidate, while for yet another – and for me this is the clincher – Brown's style of working means he is simply not good at running large collegiate organisations.

One more reason to look forward to the next G20 meeting in London in April...

*** UPDATE ***

It's been officially denied. Then again, it's been officially denied (at 4 m 50 s in...)

Wednesday, February 11, 2009

Presentations from aid evaluation conference online

Following up on my post below on Prof Easterly's talk, a number of the presentations from the conference, entitled "What Would The Poor Say: Debates In Aid Evaluation", are available here, on Easterly's Aid Watch blog. Besides his own, I found the talks by Lant Pritchett and Ross Levine to be of most potential relevance from a GAL perspective - the former on, inter aliam, the dangers of deriving policy decisions from technocratic research, the latter on the perverse incentive structures that (may) distort the policies of major aid agencies such as the World Bank - and if I have time I may blog on them in a little more detail later. But they are all worth a look.

Monday, February 9, 2009

Easterly on What the Poor Would Say...

I was lucky enough to be able to attend the conference held last Friday by NYU's Development Research Institute entitled "What Would The Poor Say: Debates In Aid Evaluation". I had one or two grumbles about the format - as so often happens at these things, the way in which the presentations were structured meant that there was relatively little actual "conferring" - just a set of fairly heavily truncated Q&A sessions that were too short to develop into exchanges of real interest. This notwithstanding, I found the event - as a series of extremely interesting lectures - to be very worthwhile; perhaps particularly so from the perspective of those who, like me, were not overly familiar with the issues involved from an economics/social science perspective.

In this post, I wanted to discuss Professor Easterly's talk, "The Big Picture on Aid Accountability", and in particular to frame it within a global administrative law perspective (not a particularly difficult task). In it, he confronted squarely the question posed in the title of the conference, although was at pains to stress at the outset that he was in no position to offer a substantive response to "What the Poor Would Say". Rather, he was interested in how the institutional mechanisms of development aid could be recalibrated in order to ensure that this question was both regularly asked and effectively answered; insisting that the question itself was the "basic question" upon which aid should be judged.

Easterly argued that there were three basic components of any effective mechanism of this sort: transparency, feedback (or "voice") and accountability (see, I wasn't lying when I said that it wouldn't take much work to frame this from a GAL perspective...). The basic evidence for his claim was offered in the form of a series of structural analogues drawn from other (relatively) effective institutional frameworks for regulating and directing human endeavour: the provision of private goods (the market); the provision of public goods (democratic governance); and the production of knowledge (the scientific method and community).

Easterly's fundamental argument was that the success of each of these governance frameworks was dependent upon its being able to furnish an answer to the question of "What would people say"? - which in turn is clearly related to the issue of accountability, which he styled as the most important of the three components outlined above. (It should be noted that Easterly is using a farily broad understanding of "accountability" - many examples of such mechanisms that he cites have been rejected by those who have sought to take a more systematic approach to the concept - see e.g. here for Richard Stewart's approach, and here for Grant and Keohane). he then proceeded to give an outline of how each of the components cashes out in the effective frameworks, and contrasted each of these to the world of development aid.

In private markets, for example, Easterly argued that "transparency" was ensured by the fact that businesses advertise what they are selling, and so customers know what their buying options are. Feedback is ensured, inter alia, by the copious amounts of market research that companies do, by consumer choices themselves, and by the emergence of a decentralised form of review through customer opinion pages on a vast range of websites. Accountability is ensured by the fact businesses go bust if they fail to be sufficiently transparent, or to respond to consumer voice. According to Easterly, however, aid agencies have none of these characteristics: there is very scant information on what services are being provided by whom to whom; feedback is limited as target audiences rarely if ever get to choose with what they will be aided or how they are to be developed, and there are no equivalents of the decentralised "customer satusfaction" reports that we find on the internet; and the big aid agencies are never threatened with extinction.

It is worth pausing at this point to head off one potentially important objection that could be made (and I'm grateful to my colleague at the IILJ, Sarah Dadush, for making it). It is of course true that businesses are rarely if ever as transparent as consumers would want them to be; certainly, it is in their interest to advertise their own products, but it may well be equally so to suppress other relevant information. Very frequently, indeed, product advertisements contain entirely misleading claims, to say nothing of the potential presence of unethical business practices, etc. Moreover, do we really want to transfer the logic of the market to the provision of aid? Two quick points to make in this regard, on my own reading at least: firstly, Easterly was not seeking to suggest that the market was in any sense perfect, but rather that it was relatively effective at delivering private goods for consumption, and the existence of transparency, feedback and accountability mechanisms were vital to that. Secondly, and perhaps more importantly, his point was not to argue that market logics of transparency, feedback and accountability should rule supreme in the global governance of aid; but rather that these constitute basic principles of effectiveness that find expression in structurally analogous but substantively different ways within different governance frameworks. While market logics may well have an important role to play, these will have to be sometimes complemented, sometimes contradicted, by other competing logics. It is also worth noting in this regard that his basic contention - that "the poor" and their wants/needs are the relevant constituency for feedback and accountability - is a judgement that will have to be made and defended prior to discussions about institutional developments.

The point about structural analogues was confirmed by the fact that Easterly made a similar comparative analysis for the other two relatively effective governance frameworks that he discussed - for the provision of public goods, and the production of knowlegde. In terms of the former, he focused on democracy, arguing that transparency was provided by laws such as the US Freedom of Information Act; that feedback comes from many sources, such as elections, polls, an independent media, and opposition politicians; and that accountability is ensured by the prospect that unpopular politicians will be removed from power. Again, he argued that the governance of aid was lacking many of the mechanisms that render democracy an effective provider of public goods: indeed, he went so far as to argue that the "Aid State" was effectively totalitarian in nature, never sharing its operational documents with interested parties, and sticking rigidly to a dogmatic consensus that is extremely resistant to conflict and change (thus lacking "opposition politicians"). I have not the experience to know whether this is an accurate reflection of how these agencies operate, but it's a powerful metaphor - and one that cries out for a GAL perspective.

Lastly, Easterly also argued that structural analogues of these successful transparency, feedback and accountability mechanisms are to be found in the production of knowledge. Transparency is ensured through the "centralised" promulgation of regular textbooks, and through the "decentralised" existence of many independent journals. Feedback is ensured through fostering debate on published works, through the mechanism of peer review, and through the fact that anyone - regardless of qualification - can disprove orthodoxy by following the established (scientific) method. Accountability is largely reputational in form; yet not unimportant for that. Again, Easterly found aid agencies wanting in terms of the basic elements of good governance that enable knowledge to be effectively produced: there are only centralised and very partial databases of statistics in aid; there is a lack of scientific freedom of research within aid agencies, and little if any peer review; and there appear to be no penalties for refusal to provide data or other accoutnability mechanisms (including an interesting story about USAID, which I will blog on shortly).

I should note that I have altered the ordering of Easterly's talk a little here in seeking to frame these issues from within a global administrative law perspective. The GAL-relevance of the first two governance frameworks should be clear: GAL rules are very often enforced to ensure that the market is allowed to operate free from governmental distortions: very many administrative law provisions of the WTO agreements - and the TRIPS agreement in particular - are, indeed, explicitly aimed at this objective. Nor is it news that administrative law can be used to entrench democratic protections - or at least "surrogates" - for those individuals upon whose interests the activities of administrative bodies impact. Indeed, these in some ways map fairly neatly onto the different ("efficiency" and "justice") governance logics that I outlined here (although it is worth noting in this regard that Easterly's take on "democratic" governance was itself here largely framed in terms of its "efficiency" in the provision of public goods. While there may well be something to this, my own view is that reliance on this alone can only provide a distinctly impoverished, and deeply inadequate, account of what democracy brings to the legitimacy table).

As I suggested in an earlier post, however, there may be another logic that is based neither upon markets or morals (to use Benedict Kingsbury's formulation), but rather on the technocratic production of knowledge - a "global administrative law of science". This would seek to regulate not any particular substantive outcome, but would rather ensure the the basic elements of the scientific method - its own transparency, feedback and accountability mechanisms included - are enforceable by law. As science becomes increasingly important to policy decisions, and to global administrative action more generally, it seems reasonable to suggest that it to should be subject to some of the "requirements of publicness" (to steal from Kingsbury again) to which we routinely subject our administrative agencies.

As I noted in a previous post, this is one type of reading that can be made of the - hugely controversial - Wegman Report that was critical of some of the science used in one of the IPCC's reports on climate change; and it is a claim that has been made repeatedly by the - equally controversial - critic of much of the "hockey stick" climate science, Steve McIntyre, over on his Climate Audit blog. Indeed, McIntyre was kind enough to link to my previous post, including some thoughtful reflections of his own on the possibility and desirability of applying GAL to the works of global bodies such as the IPCC. Whatever the truth behind the science here(and, like all good lawyers - if not good scientists - I rely exclusively on the "argument from authority" here, placing me firmly behind the weight of scientific opinion that global warming is both real and terrifying), I'd reckon that it must be difficult for lawyers in general, and administrative lawyers in particular, not to feel sympathetic towards McIntyre's "due diligence" arguments relating to full transparency on data and code used in climate reconstructions. Clearly, however, the role of science in global administration - and hence the potential need for a global administrative law of science - goes far beyond the realm of climate change: it is implicated in a great many WTO controversies, for example (see e.g. Chapter 6.3 of the GAL casebook, for example, or the more recent EC-Hormones decision of the Appellate Body); and lies behind some recent concerns over CERN's activities with the LHC.

My key point here is that, although it exhausts none of them, GAL cuts across all three of the relatively effective governance frameworks identified by Easterly, serving to entrench many of the requirements of transparency, feedback and accountability not merely as governance desiderata but as legal obligation. In a field such as the provision of aid - which, in ideal form at least, provides a public good through the provision of private goods based upon robust knowledge of what works and what doesn't - it is clear that different measures of each is required, calibrated differently to each concrete context in which they are to be applied. Global administrative law thus provides an extremely useful framework and vocabulary for discussing the ways in which the law can be implicated, and can assist, in the good global governance of the provision of aid. One way of capturing this may be to acknowledge a third, "technocratic" governance logic to sit alongside the "efficacy" and "justice" logics that I outlined previously.

Easterly's point can thus, I think, be framed in this way, at a very general level: for any governance activity, first decide upon who the relevant "publics" or "constituencies" are, and then determine and apply the appropriate mixture of different transparency, feedback and accountability mechanisms - drawn from the structural analogues to be found in relatively successful public, private and technocratic governance logics - to ensure the effectiveness of the governance in question. Clearly, this does not provide us with a solution to any concrete governance problem; it may well, however, provide us with the outlines of a framework within which effective solutions can be conceived, developed and implemented. And, as I hope this post has shown, GAL can and should play an absolutely central role in this process.

Thursday, February 5, 2009

The World Bank, government procurement and corruption

An interesting little incident that slipped under the radar last month (thanks to my colleague Yunpeng Fan for bringing it to my attention): the World Bank, as a result of an internal investigation by its Integrity Vice Presidency (INT) (responsible for investigating allegations of fraud and corruption in Bank-financed operations), found evidence of "collusive practices" (price-fixing) by seven firms - including four State-owned Chinese companies - and one individual in a major Bank-financed public roads project in the Philippines. As a result, the World Bank Sanctions Board has debarred those involved from participating in future Bank-supported projects for varying lengths of time. According to the Integrity Vice President Leonard McCarthy,

This is one of our most important and far-reaching cases, and it highlights the effectiveness of the World Bank’s investigative and sanctions process. As the World Bank Group continues to ramp up its anti-corruption work, INT will remain vigilant in investigating allegations and holding wrongdoers accountable.

It is also interesting to note, however, that both the Governments of both China and the Philippines have made allegations of procedural irregularities within the procedures followed by the World Bank (although these, it should be added, seem to be very vague assertions of "lack of evidence", "not responding to the parties involved", and "not allowing key players to participate in the inquiry") - demonstrating an awareness of the Bank not simply as the source of administrative law rules (here relating to public procurement), but also as an administrative body in its own right, whose activities should thus in principle be subject to requirements of due process. For those interested in going further, the Bank's sanctions procedures can be found here.

Both Governments have also, it seems, requested that the details of the Bank's investigation be handed over, in order that they might either challenge it or launch judicial proceedings of their own, where appropriate. At present, I'm uncertain as to whether the Bank has furnished this information - although I can see no real reason why it should refuse... Will update on this more if and when I hear anything.

Wednesday, February 4, 2009

More on the G20 and the reform of the global financial system

A quick post to keep those interested in the ongoing development of the G20's plans to respond to the global financial crisis, and in particular the GAL-related elements thereof, updated. The Washington Summit of November 15 last year established five different priorities for reform:

- Strengthening transparency and accountability
- Enhancing sound regulation
- Promoting integrity in financial markets
- Reinforcing international cooperation
- Reforming the International Financial Institutions

Although the 1st and the 5th of these are of the obvious relevance from a global administrative law perspective, there will likely be elements of interest in each. From IFIWatchnet, we learn that the G20 has established a set of Working Groups charged with the tasks of evaluating steps that have been taken and making recommendations for future reforms in their respective areas:

As Chair of the G20 in 2009 the UK, working closely with Brazil and Korea 2008 and 2010 Chairs respectively, has established four working groups to advance this work for the next Leaders’ Summit on 2 April in London. Each working group is co-chaired by two senior officials from the G20, one from a developed and one from an emerging market economy. Each G20 country is represented on each working group. Experts from relevant international financial institutions, standard setting bodies, non G20 countries, business and academia have also been invited by co-chairs to input into the work of the groups.

(Interesting to note here the participation of relevant private and civil society actors in the Working Groups).

Working Group 1 is to focus on "Enhancing sound regulation and strengthening transparency", and will, inter alia, "make... recommendations to strengthen international standards in the areas of accounting and disclosure, prudential oversight and risk management" (As an aside, I wonder what the relation of these recommendations to the work of the International Accounting Standards Board (IASB) might be).

Working Group 2 is to deal with "Reinforcing international co-operation and promoting integrity in financial markets", including "the regulation and oversight of international institutions and financial markets", and proposals to "protect the global financial system from illicit activities and non-co-operative jurisdictions" and "strengthen collaboration between international bodies".

Working group 3 will look at the specific issue of "Reforming the IMF", and will "review the appropriateness of the IMF’s lending instruments and the effectiveness of its surveillance function, and will consider the sufficiency of its resources, and its general arrangements and accountability; and will look at the issue of reform of the governance structure so that it more adequately reflect changing economic weights in the world economy".

Lastly, Working Group 4 will perform a very similar function to Working Group 3, but with a broader remit to investigate the activities of "The World Bank and other multilateral development banks (MDBs)" - including their mandates, governances structures and policy instruments.

Plenty of GAL there, then - although mostly, it should be noted, based upon an "efficacy-driven" rather than a "justice-driven" governance logic. The Working Groups are to report to the Finance Ministers and Governors of the Central Banks of G20 States on march 14th, ahead of the next summit in London on April 2 of this year.