Modern slavery is an amalgam of legal concepts defined in international law united by a shared characteristic – they are all forms of unfree labour: one person deprives another person of their freedom for profit. The introduction explains how unfree labour involving migrant workers and supply chains is particularly troublesome for states to govern because these transnational vectors do not fit within the ‘default’ territorial format of legal jurisdiction and, thus, challenge traditional ideas of state sovereignty. It treats modern slavery laws, which combine international, national, and (sometimes) regional laws, as an example of transnational law and shows how, in this context, the nation state is but one among an assemblage of governance actors. It develops a multidimensional conception of jurisdiction to explore the transnational legal governance of unfree labour and to illustrate how modern slavery laws reconfigure traditional understandings of sovereignty.

In a period of rising threats to constitutional government within countries and among them, it is a crucial time to study the rule of law in transnational context. This framework chapter defines core concepts, analyzes the relation between national and international law and institutions from a rule-of-law perspective, and assesses the extent to which rule-of-law practices are shifting at the domestic and international levels in parallel. Part I explains our conceptualization of the rule of law, necessary for the orientation of empirical study and policy responses. Following Martin Krygier, we formulate a teleological conception of the rule of law in terms of goals and practices, which, in turn, calls for an assessment of institutional mechanisms to advance these goals, given varying social conditions and contexts. Part II sets forth the ways in which international law and institutions are important for rule-of-law ends, as well as their pathologies, since power is also exercised beyond the state in an interconnected world. Part III examines empirical indicators of the decline of the rule of law at the national and international levels. It notes factors that could explain such decline, and why such factors appear to be transnationally linked. Part IV discusses what might be done given these shifts in rule-of-law protections. In conclusion, we note the implications of viewing the rule of law in transnational context for conceptual theory, empirical study, and policy response.

After a moment that was characterized by a flurry of constitutional reforms and elections, coups have returned in some states in Western, Central, and Sahel regions in Africa. The rule of law and democratic governance have come under significant stress. A confluence of events – colonial legacies, uprisings, regional conflicts, term elongation, challenges to the dynastic style of leadership, and the rising incidence of coups – challenge the entrenchment of the rule of law in contemporary Africa. Focusing on the period between 2020 and 2023, the chapter asks: Against the background of recent coups, how should we analyze the rule of law in contemporary Africa? Is the decline of the rule of law and democratic governance in sub-Saharan Africa as a region overstated, given that the coups are concentrated in Francophone West and the Central Africa? How should we think of the role of geopolitical contestations and colonial linkages in unsettling democratic regimes and eroding the rule of law in Africa?

What is territoriality, if we consider it from a maritime, rather than landed perspective? And how should borders be reconsidered, if we assume that the nonsovereign space of world seas is constitutive of politics, rather than exceptional to it? To answer this question, this chapter adopts a processual approach to international legal theory and outlines a vast trajectory. Sources from antiquity display an imagination of maritime spaces as an exteriority in relations to politics. In the seventeenth and eighteenth centuries, classical international lawyers formulated an international law of the sea that sought global applicability. This was what is called here “the first internalization” of the sea. A second internalization is currently underway, in which a central tenet of the first, freedom of movement at sea, is now being questioned. It is argued in this chapter that if we are to understand territoriality, we must reject the premise of universal territoriality and understand it (also) from the position of nonterritoriality which is offered to us by the sea. In other words, the two internalizations are crucial for a processual understanding of territoriality. The chapter concludes with reflections on how traces of exteriority, beyond both internalizations, can be utilized for the purpose of political action.

The aim of this chapter is twofold. First, it is a comparative study on the potential benefits and limitations of applying fiduciary law in a “hard case.” This analysis is inductive in nature. It aims at contributing to a better understanding of fiduciary law doctrines in both common and civil law jurisdictions. Second, the chapter focuses on specific transnational processes that may shape fiduciary norms. In particular, it analyzes the influence of transnational private ordering on the establishment of fiduciary duties in state law.

This chapter explores the intersection of transnational law with contemporary corporate governance laws and principles. Corporate governance, with its complex array of public and private actors, fits naturally within the modern concept of transnational law as a species of law that "can no longer be viewed through a purely national lens." Financial markets today are global and interconnected and events, such as the 2007-2009 global financial crisis and the COVID-19 crisis, exemplify the risk of contagion across those markets. Not only can corporate governance problems transcend national boundaries, so too can their solutions, which often involve regulatory efforts that operate at a transnational level. The chapter explores, from a transnational perspective, the transmission of laws and norms that are designed to constrain directors’ conduct and enhance corporate accountability. It focuses on two key examples of such accountability mechanisms-fiduciary duties and corporate codes. The chapter examines, for example, the global transmission of corporate governance and shareholder stewardship codes. These codes, which are a relatively recent phenomenon, play an important role as “norm creators.” The chapter assesses the transmission of laws and norms against the backdrop of convergence and path dependence theories of corporate governance.

I argue that transnational law has a formal legal character. To do so, I build on socio-legal scholarship in this domain, but apply a jurisprudential perspective. Specifically, I argue that public fiduciary theory is well-placed to explain the nature of authority evoked by transnational legal orders, as well as their legal features and constitution. This theory claims that the fiduciary character of an organization - that is, its other-regarding purpose and adherence to certain procedural standards - is a necessary feature of its claim to legitimate authority. By addressing these jurisprudential questions, public fiduciary theory contests scholars who deny transnational law’s formal legal character. Ultimately, I argue that despite the private constitution of some transnational lawmaking bodies, and their lack of express public authorization, by fulfilling a transnational fiduciary role they exercise authority that either is or closely resembles public authority. This, in turn, contributes to the legal character of the transnational norms these bodies generate. I use the International Organization for Standardization as an illustrative case study. The implications of this approach include acknowledging that law can exist beyond national or international state regulation, and a denial that coercion is an essential element of law.

Fiduciaries frequently confront transnational situations. Lawyers – an archetypal class of fiduciary – have long counseled participants in cross-border transactions and conducted their own activities transnationally.1 Financial institutions – firms that often act in a fiduciary capacity2 – have provided products transnationally for centuries.3

This chapter will use the historical evolution of fiduciary norms in Japan and East Asia to examine the intersection of fiduciary law and transnational legal ordering theory. Various strands of fiduciary notions arrived in East Asia as part of modernization effort beginning in the late nineteenth century. The civilian regulation of conflicted transactions and duty of care was introduced in Japan, South Korea, and Taiwan as part of Civil Code and Commercial Code, which was followed by statutory introduction of common law trust in early twentieth century, and American corporate governance theory after World War II. Singapore and Hong Kong adopted English common law and equity jurisprudence along with legislations that follow UK and Commonwealth models, which were frequently updated to meet the demands of international financial market. While tensions among common law, civil law, and indigenous norms were conspicuous during the early phases of modernization and reception, more recent decades of globalization have seen greater scale and dynamics of transnational interactions, most notably the rise of UK-style soft law initiative. Throughout the regional history, fiduciary norms have been shaped by shifting colonial pressures and economic hegemony, wars, revolutions, and financial crises, as well as legislative imitation and academic learning. By way of conclusion, this chapter argues that while fiduciary law presents a rich field for exploring process of transnational legal ordering, the theory of transnational legal ordering provides a valuable framework to understand both historical and contemporary evolution of fiduciary law both in individual jurisdictions and across jurisdictional borders.

In recent years, fiduciary law has moved toward the center of scholarly attention in the common law world.1 In spite of its “elusive” nature,2 enough instances of fiduciary relationships occur across a wide variety of legal areas that many – with good cause – describe it as a distinctive field.3 Courts as well as scholars in common law jurisdictions deal concepts and ideas concerning fiduciary law back and forth.4 Although civil law countries have no tradition of the trust as a legal institution,5 courts and scholars alike term relationships based on some kind of personal or professional trust “fiduciary.”6 German law subjects guardians,7 trustees in bankruptcy,8 attorneys,9 and others to a specific set of fiduciary duties, the most important of which is a duty of loyalty.10 France has introduced “la fiducie,” a substitute for the common law trust.11 Indeed, civil law countries have long combined property and contract law in order to fashion substitutes for the common law trust. Contract-based Treuhandverhältnisse – that is, relationships of trust – have been a staple part of the German legal discourse for several decades, if not centuries.12 And in recent years, the trust as a legal institution is gaining ground in civil law jurisdictions, following national recognition of the Hague Trust Convention by countries such as Italy and the Netherlands.13

Particularly in the context of public law, comparative law scholarship typically involves a comparison of legal norms, principles, actors, or legal institutions in different state jurisdictions or across legal traditions. The rise and increasing prevalence of transnational regulators – particularly transnational non-state regulators, but also hybrid and intergovernmental varieties – challenges this methodological default. It invites us to consider the nature of regulation across different legal regimes, some of which might be overlapping, and which, in their claims to authority, might be complementary or conflictual. Acknowledging the presence of transnational regulators within a plurality of legal orders raises questions about how state-centric regulatory institutions at the sub-national, national, regional, or international levels differ from hybrid (state/non-state) and predominantly non-state regimes, whether in terms of their functions (e.g., in terms of standard-setting, enforcement, and dispute resolution) or in terms of their relative claims to authority and political legitimacy. This chapter shows how transnational law poses a conceptual and methodological challenge for comparative lawyers, yet one that reinforces recent innovations in the comparative law field, reflected in this Handbook, that extend comparative law beyond functional comparisons of rules, legal systems, or legal traditions.

The Introduction provides a summary of the central arguments and outlines the chapters of the book.

The literature on international arbitration has been fragmented, because the practice of international arbitration has, for some time, also been fragmented. In the space between the well-established (but relatively isolated) communities of legal practice that operate in the ‘public-law’ arbitration of interstate disputes and the ‘private-law’ arbitration of international business disputes, there has been the relatively recent development of ‘mixed’ investment arbitration that has caused those two legal communities to move closer to one another, and to overlap. This has enabled the consideration of international arbitration and its legal framework as a unified subject of inquiry. In this paper, the author explores the commonalities that this perspective highlights in terms of “sources.”

In the first part of the paper, the author considers the development of the different worlds of international arbitration since the late nineteenth century by dwelling on elements that are often overlooked when the recent story of international arbitration is told. In the second part of the paper the author provides an overview of the potential features, and the hurdles that stand in the way, of a unified representation of international arbitration.

Mongolia’s recent transition to a mineral exporting economy has much to tell us about the relationship between economic change and constitutional transformation. It reveals how the legal construction of markets invite a bevy of transnational economic and legal ‘actors, norms and processes’ which interact with the national constitution. Natural resource extraction, in particular, is charged with the potential to catalyse material constitutional change within the state, by virtue of its profound socio-environmental impacts, the generation of new conflicts over resource control within the state and the exposure of national institutions to transnational investment norms within the context of volatile global commodity markets.