Advancing Global Stakeholder Representation Through Decentralized Transnational Dispute Resolution: A View from the Asia Pacific
Professor of Business Law Peer Zumbansen welcomes Law Professor Shahla Ali as part of the 2021-2022 Seminars in Business & Society series. Professor Shahla Ali is Associate Dean (International) at the University of Hong Kong Faculty of Law and Director of the LLM Program in Arbitration and Dispute Resolution. Her work centers on questions of governance, development and cross-border dispute resolution in the Asia Pacific region. She serves as a bilingual arbitrator (English/Chinese) with CIETAC, HKIAC, KCAB and SIAC.
Abstract
International commercial arbitration has long been subject of critique for unequal access to and participation in shaping the norms of this transnational legal order.
What can be learned from a success story in broadening Asian state participation?
How might regional centres, such as the UN Commission on International Trade Law's Regional Centre for Asia and the Pacific help level the playing field for legal practitioners in diverse regions in terms of access to and contribution to the generation of norms governing cross border dispute resolution?
Core themes
The movement toward greater inclusivity in global soft law making is set out against a backdrop of historically uneven representation in global institutions. Calls to expand stakeholder participation has aimed at strengthening legitimacy through more inclusive representation and regional adaptation. An innovative effort to advance participation in soft law development began in 2012 with the establishment of the United Nations Commission on International Trade Law (“UNCITRAL”) Regional Centre for Asia and the Pacific. As the first Centre of its kind, it was charged with coordinating with private and public institutions in the Asia Pacific in the development, interpretation and application of global cross-border commercial and dispute settlement guidelines. The experience of this Centre offers a window into what this seminar describes as a new form of “Decentralized Transnational Legal Ordering.”
The study discussed here and published by Edward Elgar in 2021, Forming Transnational Dispute Settlement Norms: Soft Law and the Role of the UNCITRAL Regional Centre for Asia and the Pacific, tests the proposition that the presence of regional centres has the potential to expand participation in global soft law making. It carries out a novel analysis of the influence of decentralized engagement in overcoming representational deficits in the design of global soft law pertaining to cross-border dispute settlement. It does this by comparing the impact of two forms of engagement in the Asia-Pacific region, traditional ‘centralised’ engagement and the more recent ‘decentralised’ form, on the soft law-making process over a 10 year period. The former is characterised by formal intermittent participation in global deliberation processes at UN headquarters through Working Group II (dispute resolution) meetings prior to 2012, and the latter characterized by informal, localised and decentralised engagement facilitated through the regional centre after January 2012 when the UNCITRAL RCAP was established.
The studies key findings, drawing on in-depth case studies, a survey of 50 legal practitioners involved in regional legal reform, and empirical analysis of UNCITRAL working group participation logs suggest that regional centers such as the UNCITRAL Regional Centre for the Asia-Pacific while still in their early development, have corresponded with the emergence of a new form of “decentralized transnational legal ordering” associated with growing regional engagement and participation in global soft law design. This is evidenced by a 63% increase in the frequency of Asia-Pacific regional input in WG II meetings, an 8% increase in official Asia-Pacific representation in the WG II, a 6.2% increase in the number of observers from the Asia-Pacific region, and an average increase of 32% in perceived levels of engagement and participation amongst regional stakeholders over a 10-year period. Regional legal developments and innovations have likewise informed ongoing global innovation in soft law making, while inaugural localized and increasingly accessible intersession meetings have engaged a growing number of practitioners in conversations about soft law design. The substantive findings of this study, alongside unique methodological contributions in the design of a new set of indicators tracking regional participation, provide useful insights supporting the expansion of regional centres in areas with historically limited representation in global law making including from within Africa, the Middle East and South America.
