Transnational Mutual Recognition Regimes: Governance without Global Government
Nicolaidis, Kalypso, Shaffer, Gregory, Law and Contemporary Problems
Scholars of globalization and international and transnational governance are putting forth a growing number of conceptual frameworks to examine and address issues of law and global governance. These frameworks include constitutional, contract, and (now) global administrative law constructs. As the framing paper in this symposium issue defines it, "global administrative law" comprises "the mechanisms, principles, practices and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies, in particular by ensuring they meet adequate standards of transparency, participation, reasoned decision and legality, and by providing effective review of the rules and decisions they make." (1) This article discusses managed mutual recognition regimes within a global administrative law framework, although, as will be seen, it often uses the term "transnational administrative law" (or "transnational governance") because of the horizontal, trans-governmental character of mutual recognition regimes. This article argues that transnational mutual recognition regimes are not simply one option among many available in the palette of global administrative law, but rather a core element of any global governance regime that eschews global government. The diffusion of mutual recognition regimes partakes in shaping a system of global subsidiarity that rejects (or at least does not unquestionably accept) the temptations of centralization and hierarchical constitutionalization of global economic relations. (2)
As a practical matter, the global administrative law construct is forced to deal with the limitations of any "global" governance regime in relation to national analogues. On the one hand, there is no "government" at the global level, whether in the form of a global legislature, global executive, or global court with mandatory jurisdiction and enforcement powers. On the other hand, the world is globalizing in terms of the intensity and extensiveness of exchange, governance mechanisms are emerging to deal with those exchanges, and publics are demanding that these mechanisms be more accountable. Scholars have responded by trying to understand (positively) what is happening on the ground by putting forward normative models as to how these mechanisms should operate, often in the hope of influencing decisionmakers in the way they might steer global and transnational processes.
This article examines the model of mutual recognition within the concept of an emerging, inchoate, and fragmented system (if one may be so bold to use the term "system") of global and transnational administrative law. Mutual recognition forms an essential part of any global administrative law regime by creating conditions under which participating parties commit to the principle that if a product or a service can be sold lawfully in one jurisdiction, it can be sold lawfully in any other participating jurisdiction. In order to give effect to this general principle, governments adopt mutual recognition as a contractual norm whereby they agree to the effective transfer of regulatory authority--or jurisdiction--from the host country where a transaction takes place, to the home country from which a product, a person, a service, or a firm originates, subject to agreed (and managed) conditions. (3) Why such a demand for foregoing the age-old notion of "when in Rome do as the Romans do" in favor of the recognition, and thus extraterritorial application, of national laws? And under what conditions is this move acceptable to the various actors involved? These questions form the starting point for analysis.
In practice, mutual recognition, in all its incarnations, is conditional. Mutual recognition regimes set the conditions governing the recognition of the validity of foreign laws, regulations, standards, and certification procedures among states in order to assure host country regulatory officials and citizens that their application within their borders is "compatible" with their own, and that incoming products and services are safe. …