Title: Transnational Mutual Recognition Regimes: Governance without Global Government
Abstract: I INTRODUCTION Scholars of globalization and international and governance are putting forth a growing number of conceptual frameworks to examine and address issues of and governance. These frameworks include constitutional, contract, and (now) administrative constructs. As framing paper in this symposium issue defines it, administrative law comprises the mechanisms, principles, practices and supporting social understandings that promote or otherwise affect accountability of administrative bodies, in particular by ensuring they meet adequate standards of transparency, participation, reasoned decision and legality, and by providing effective review of rules and decisions they make. (1) This article discusses managed mutual recognition regimes within a administrative framework, although, as will be seen, it often uses term transnational administrative law (or transnational governance) because of horizontal, trans-governmental character of mutual recognition regimes. This article argues that mutual recognition regimes are not simply one option among many available in palette of administrative law, but rather a core element of any governance regime that eschews government. The diffusion of mutual recognition regimes partakes in shaping a system of subsidiarity that rejects (or at least does not unquestionably accept) temptations of centralization and hierarchical constitutionalization of economic relations. (2) As a practical matter, administrative construct is forced to deal with limitations of any global governance regime in relation to national analogues. On one hand, there is no government at level, whether in form of a legislature, executive, or court with mandatory jurisdiction and enforcement powers. On other hand, world is globalizing in terms of 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 ground by putting forward normative models as to how these mechanisms should operate, often in hope of influencing decisionmakers in way they might steer and processes. This article examines model of mutual recognition within concept of an emerging, inchoate, and fragmented system (if one may be so bold to use term system) of and administrative law. Mutual recognition forms an essential part of any administrative regime by creating conditions under which participating parties commit to 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 effective transfer of regulatory authority--or jurisdiction--from host country where a transaction takes place, to 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 age-old notion of when in Rome as Romans do in favor of recognition, and thus extraterritorial application, of national laws? And under what conditions is this move acceptable to various actors involved? These questions form starting point for analysis. In practice, mutual recognition, in all its incarnations, is conditional. Mutual recognition regimes set conditions governing recognition of 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. …
Publication Year: 2005
Publication Date: 2005-06-22
Language: en
Type: article
Access and Citation
Cited By Count: 200
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