Governing Economic Globalisation: Global Legal Pluralism and European Law

• Author: Francis Snyder
• Published date: 01 December 1999
• DOI: http://doi.org/10.1111/1468-0386.00087
• Date: 01 December 1999

Governing Economic Globalisation:

Global Legal Pluralism and European Law

Francis Snyder*

Abstract: How is globalisation governed? The following article tries to answer this

question. Focusing on economic globalisation, it presents the case of the international

commodity chain in toys, identif‌ies its various segments or boxes, and then gives

examples to illustrate how the chain is governed. The article argues that economic

globalisation is governed by the totality of strategically determined, situationally

specif‌ic, and often episodic conjunctions of a multiplicity of sites throughout the world.

These sites include, for example, EU law, United States law, Chinese law, multi-

national corporation and trade association codes of conduct, international customs

conventions, and WTO law. Each of these sites has institutional, normative, and

processual characteristics. Though the sites are not isolated from each other, each has

its own history, internal dynamics, and distinctive features. Taken together, they

represent a new form of global legal pluralism.

I Introduction

A How is Globalisation Governed?

How is globalisation governed?

1

I suggest that it is governed by the totality of

strategically determined, situationally specif‌ic, and often episodic conjunctions of a

multiplicity of sites throughout the world. These sites have institutional, normative,

334 © Blackwell Publishers Ltd. 1999

* Professor of European Community Law, European University Institute, Florence: Co-Director, Academy

of European Law, Florence; Professor of Law, College of Europe, Bruges; Honorary Visiting Professor of

Law, University College London. US Attorney (Bar of Massachusetts).

1

Early versions of parts of this paper were presented at the Institute of International Studies, Stanford

University, 2 April 1999, while I was Visiting Senior Fellow at the Stanford Law School Program in

International Legal Studies; the Conference on ‘Transatlantic Regulatory Cooperation’, Inaugural

Conference of the European Studies Center of New York, held at Columbia Law School, 16–17 April

1999; the Conference on ‘The Regional and Global Regulation of International Trade’, Institute of

European Studies of Macau, 10–11 May 1999; and the Guangdong International Research Institute for

Technology and Economy, 13 May 1999, Guangzhou, China. I wish to thank, in particular, George

Bermann, Coit Blacker, Maria do Céu Esteves, Jill Cottrell, Chen Yong Quan, Cao Ge Feng, Candido

Garcia Molyneux, Tom Heller, David Holloway, Emir Lawless, Cosimo Monda, Song Ying, Anne-Lise

Strahtmann, Yang Zugong, the Hong Kong Trade Development Council, the staff of the European

Commission in Brussels, and several government and toy industry representatives in the Shenzhen,

China, Special Economic Zone, for their contributions to the paper. Jill Cottrell kindly provided helpful

material on Hong Kong law. An earlier, shorter version of the theoretical argument of the paper will be

published as ‘Global Economic Networks and Global Legal Pluralism’, in G. Bermann, M. Hedeger, and

P. Lindseth (eds), Transatlantic Regulatory Cooperation, (Oxford University P 2000).

European Law Journal, Vol. 5, No. 4, December 1999, pp. 334–374

© Blackwell Publishers Ltd. 1999, 108 Cowley Road, Oxford OX4 1JF, UK

and 350 Main Street, Malden, MA 02148, USA

and processual characteristics. The totality of these sites represents a new global form

of legal pluralism. This paper aims to explore and, within limits, to substantiate this

claim. It invites us to think systematically about global legal pluralism and how it

governs globalisation.

The paper forms part of a broader research project on the governance of globalis-

ation. The project analyses the resolution of trade disputes between the European

Union (EU) and China.

2

It focuses on a series of case studies, one of which concerns

the international trade in toys between the EU and China. Here, I draw on this case

study selectively for the purpose of my theoretical argument.

The paper aims to increase our understanding of how globalisation is governed and

to improve our capacity to analyse these new forms of governance. It is not intended

to promote law reform or advance a specif‌ic political or institutional agenda. Conse-

quently, its perspective is more sociological than normative. It adopts, as a useful

starting point, the standpoint of strategic actors. Relations among strategic actors can

be envisaged as involving different types of organisations, whether f‌irms, states, or

regional or international organisations. Alternatively, we can see them as implicating

different structures of governance, whether market-based structures or polity-based

structures. From a third perspective, these relationships put into play global economic

networks and various sites of global legal pluralism. The paper is intended to highlight

all of these perspectives.

B The Meaning of Globalisation

Thinking about how global economic networks are governed requires a concept of

globalisation. By globalisation, I refer to an aggregate of multifaceted, uneven, often

contradictory, economic, political, social and cultural processes which are character-

istic of our time. This paper concentrates primarily on the economic aspects, but these

need to be set within a more general framework.

In economic terms, the most salient features of globalisation, driven by multi-

national f‌irms, are, for the present purposes, the development of international

production networks (IPNs),

3

the dispersion of production facilities among different

countries, the technical and functional fragmentation of production, the fragment-

December 1999 Governing Economic Globalisation

© Blackwell Publishers Ltd. 1999 335

2

The basic legal framework is discussed in F. Snyder, International Trade and Customs Law of the

European Union, (Butterworths 1998), passim, in particular 594–600 [hereafter International Trade]. For

other publications resulting from the project, see my ‘Legal Aspects of Trade between the European

Union and China: Preliminary Ref‌lections’, in N. Emiliou and D. O’Keeffe (eds), The European Union

and World Trade Law after the GATT Uruguay Round (John Wiley & Sons 1996), 363–377; ‘Global

Economic Networks and Global Legal Pluralism’, in G. Bermann, M. Hedeger, and P. Lindseth (eds),

Transatlantic Regulatory Cooperation, (Oxford University P 2000); ‘Europeanisation and Globalization

as Friends and Rivals: European Union Law and Global Economic Networks’, in F. Snyder (ed), The

Europeanisation of Law, (Hart Publishing, in press)[hereafter ‘Friends and Rivals’]; ‘Judicial Review in

the Age of Globalisation: Chinese Toys in the European Court of Justice’, in D. O’Keeffe and A. Bavasso

(eds), Liber Amicorum for Gordon Slynn: Judicial Review in European Law (forthcoming 1999) [hereafter

‘Chinese Toys’]; ‘Legal Issues in EU-China Trade Relations’, Wuhan University Law Review, forthcoming

1999 [in Chinese]; and (with Song Ying), Introduction to European Union Law, 2

nd

edition (Peking

University P, forthcoming 2000 [in Chinese]).

3

See, in particular, the work of the Berkeley Roundtable on the International Economy, for example, M.

Borrus and J. Zysman, ‘Globalisation with Borders: The Rise of Wintelism as the Future of Industrial

Competition’, in J. Zysman and A. Schwartz (eds), Enlarging Europe: The Industrial Foundations of a

New Political Reality, University of California at Berkeley 1998), pp 27–59.

ation of ownership, the f‌lexibility of the production process, worldwide sourcing, an

increase in intra-f‌irm trade, the interpenetration of international f‌inancial markets, the

possibility of virtually instantaneous worldwide f‌lows of information, changes in the

nature of employment, and the emergence of new forms of work.

Viewed from a political standpoint, globalisation has witnessed the rise of new

political actors such as multinational f‌irms, non-governmental organisations and

social movements. It has tended to weaken, fragment, and sometimes even restructure

the state, but has not by any means destroyed or replaced it. Globalisation has also

radically altered the relationship to which we have become accustomed in recent

history between governance and territory. It has thus blurred and splintered the

boundaries between the domestic and external spheres of nation-states and of regional

integration organisations, fostered the articulation of systems of multi-level gover-

nance, interlocking politics and policy networks, and helped to render universal the

discourse of, and claims for, human rights. In many political and legal settings, such as

the European Union, it has raised serious questions about the nature and appropriate

form of contemporary governance.

Among the manifold social processes involved in globalisation are the spread of

certain models of production and patterns of consumption from specif‌ic geographic/

political/national contexts to others. Contradictory tendencies have developed towards

internationalisation and localisation within, as well as among, different regions and

countries. We have also witnessed the uneven development of new social movements

based on different, if not alternative, forms of community.

Seen as a cultural phenomenon, globalisation has implied the emergence of a new

global culture, which is shared, to some extent, by virtually all élite groups. This has

enhanced the globalisation of the imagination and of the imaginable.

4

At the same

time, it has contributed both to the transformation of many local cultures, sometimes

strengthening them, sometimes marginalising them, sometimes having both conse-

quences simultaneously. Consequently, it has sometimes increased the range and depth

of international and infranational cultural conf‌licts, as well as the resistance to new

forms of cultural imperialism.

C An Analytical Strategy

The remainder of the paper is divided into four main parts. The next part (Part II)

introduces the global commodity chain in toys, an empirical anchor for my theoretical

argument. Part III then sketches what I consider to be the basic elements of global

legal pluralism. Part IV presents in more detail the shape of global legal pluralism,

bringing together examples of institutional, normative, and processual sites and the

segments of the global commodity chain in toys, which they govern. The conclusion

brief‌ly summarises the argument and proposes hypotheses for further research.

II A Global Economic Network: The Global Commodity Chain in Toys

Global economic networks take various forms. I focus here on the international toy

industry. The toy industry’s global reach and domestic impact can be illustrated clearly

European Law Journal Volume 5

336 © Blackwell Publishers Ltd. 1999

4

For this expression, I am indebted to Prof. Pietro Barcellona, oral intervention at the Conference on

‘Quelle culture pour l’Europe? Ordres juridiques et cultures dans le processus de globalisation’, Réseau

Européen de Droit et Société (REDS) and Istituto di Ricerca sui Problemi dello Stato e delle Istitutionzi

(IRSI), Rome, 2–3 November 1998.