ABSTRACT

The intellectual turn that produced the law and society movement in the United States, the law in context movement in the United Kingdom, and sociolegal scholarship internationally may be characterized as an escape from the text. Whereas legal scholarship centred on the legal text and its normative meanings, sociolegal scholarship insisted that it was necessary to see past the text, whether a statute, case or regulation, to practice and behaviour. Invariably a gap lay between the text and action and that gap warranted empirical investigation and theoretical explanation. Inquiry into how the text got onto the books and normative distinctions between one sort of text versus another for the most part was left by sociolegal scholars to political scientists or jurists, a legacy that still constrains socio­ legal scholarship to the present, whether on national or international terrains. In recent years, the sociolegal neglect of getting to the text has been challenged. Although important exceptions can be seen in national law­ making, a growing interest in international law, global regulation and gov­ ernance has brought new attention to the politics of global standard­ setting which, in effect, amounts to a politics of the text (Braithwaite and Drahos 2000; Canan and Reichman 2001). Here ‘text’ may take the form of hard law or soft, of conventions and best practices, of model laws or legislative guides, of prescriptive or diagnostic standards. Sociolegal scholars have asked, whose texts are these and whose interests do they reflect ( Jensen and Santos 2000)? In the world of global affairs, not least in international economic law, neither of these moves – from law on the books or to law on the books – can be divorced from the other. In the world of scholarship, good social theory requires that each move be held in tension with the other since each constrains and shapes the other and indeed they unfold through time in dynamic engagement. A theoretical move to systematize the crea­ tive tension that produces legal change in a global context is captured by

the concept of the recursivity of law (Halliday 2009; Halliday and Carru­ thers 2007; Halliday and Carruthers 2009). Developed originally to explain how global economic normmaking engages with national lawmaking and the local practices that emerge, the recursivity framework also offers a dis­ tinctively inter­ disciplinary orientation for assessing the process through which these texts are crafted. Does the process result in texts that mesh with practice, or compete with it? If a text is in competition with behav­ iours and practices, recursivity theory predicts that pressures will form to press for its revision, whether at a national or international level. We argue that a politics of the text sits at the centre of global govern­ ance over the making of international trade law and, indeed, of global economic normmaking more generally. This is a recursive politics. It con­ fronts who crafts the text, what form it takes, and how it is carried into global and national arenas of economic activity. To exemplify the argu­ ment we focus on a duel between two international organizations (IOs) over which would emerge as the pre­ eminent global authority on the norms for corporate bankruptcy law. On the one side was the United Nations Commission on International Trade Law (UNCITRAL), a multi­ lateral body that develops a variety of trade laws for national and interna­ tional markets. On the other side was the World Bank, an international financial institution that has reached increasingly in the last two decades to economic lawmaking for the world. Between 1999 and 2005 these two IOs fought behind the facades of global institutions for primacy over which would promulgate the ‘gold standard’ for corporate bankruptcy systems. This chapter is based on ten years of participant observation of deliber­ ations by UNCITRAL’s Working Group V on Insolvency, hundreds of informal and formal interviews with delegates, the UNCITRAL Secretariat, and World Bank officials, and close analysis of all draft and final texts of UNCITRAL and the World Bank on insolvency (see further Block­ Lieb and Halliday 2006, 2007a, 2007b and 2011; Halliday 2009 and 2011; Block­ Lieb and Halliday 2011; and Halliday et al. 2009). We proceed in four steps. First, we encapsulate the theory of the recur­ sivity of law for the making of international economic law and note how its sociolegal sensibilities add to general political or economic or sociological theories of globalization. Second, we describe the duel between UNCI­ TRAL and the World Bank and show how its broader context shaped the institutional reputations and legitimacy of the combatants, the struggles over the substantive scope and form of the text they produced, and the probability of its adoption in practice. Third, we refract the drama of the duel through the theory of the recursivity of law, simultaneously showing how the empirical materials refine the theory as the theory amplifies the meaning of the events. Finally, we conclude with extrapolations of this single case to the making of international economic law of any kind.