COURSE: LAW & JUSTICE IN A

GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: GLOBALIZATION OF LAW AND
ODISHA LEGAL THEORY (WEEK 2)
INSTRUCTORS: PROF. RAO

GLOBALIZATION OF LAW

It is much debated if the law has a role to play in the process of globalization or if
globalization has affected the law. This is a chicken-egg problem. We live in a globalized
world. As activities become more globalized, legal systems and regulations also tend to
change and adapt to these globalized activities. In this segment, we will be discussing on
'globalization of law and legal regulations’.

INTRODUCTION: WHAT DO WE MEAN BY GLOBALIZATION OF LAW?

Does Globalization of law refer to a concept where the entire world lives under and follows a
single set of legal regulations? This is an idealistic situation. But you may find this quite
confusing and controversial as we have learned that laws and regulations are usually limited
by territoriality. Different countries follow different sets of laws and rules, thereby making it
a rather difficult concept to understand. For instance, when a person from India goes to
China, will she be governed by Indian laws or Chinese laws? With the advancement in
transportation, information and technology, movement of persons, goods, services and capital
has increased. As many international organizations aim to bring about harmonization of laws
among various countries, it’s still a distant goal.

Globalisation of law can take place in broadly three forms:

(1) Direct transfer of institutions and legal principles from one national system to
another: For instance, the adoption of democracy (as originated in Greece) by most
countries of the world, as recent as by Nepal in 2006.
(2) Imposition of a global legal principle upon administrative bodies and procedures in
independent countries: An example of this could include the imposition of various
World Trade Organization (WTO) rules and regulations to administer trade within and
among member states.Another example of this form could be the adoption of human
rights provisions in our Constitutions as a result of the Universal Declaration of Human
Rights (UDHR) which was initially designed as a common ideal to be pursued has now
become a parameter for evaluating behavior.Even the UNCITRAL Model Law on
 COURSE: LAW & JUSTICE IN A
GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: GLOBALIZATION OF LAW AND
ODISHA LEGAL THEORY (WEEK 2)
INSTRUCTORS: PROF. RAO

International Commercial Arbitration has had a profound effect in the framing of

arbitration laws across various countries.
(3) The adoption of national legal principles and concepts at a global level: An ideal
example of this form can be seen in how the principles of natural justice, which originally
developed as a part of the English Common Law, has now found its way into
international legal principles embodied in the UDHR1, the International Covenant on
Civil and Political Rights (ICCPR)2, and the European Convention on Human Rights
(ECHR).3

EFFECTS OF GLOBALIZATION ON THE LAW

The notion of globalization has had an impact on certain fields of law and we will examine its
impact on commercial and contract law, public law and protective law.

Martin Shapiro in his article ‘Globalisation of Law’ has examined the process of
globalization in law in the following fields:

GLOBALISATION OF COMMERCIAL AND CONTRACT LAW

With the advent of globalization, we can see some movement towards a uniform global
contract and commercial law. With the rise in transnational contracts, the contracting parties
specify which laws will govern the contract and how the disputes can be settled. The courts
of each country or at least most of the countries are now prepared to enforce such global
commercial law. The success of such global commercial law is mostly based on the
incentives for uniformity, predictability and transparency. The mergers and acquisitions of
companies have accelerated the growth of global commercial law.

GLOBALISATION OF PUBLIC LAW

The process of globalization has an impact on administrative law and constitutional law as
well. The new apparatus of administrative law now maximizes the public participation in the
administrative policy-making policies and at the same time imposes an obligation on the

1
Article 10, Universal Declaration on Human Rights
2
Article 14, International Covenant on Civil and Political Rights
3
Article 6, European Convention on Human Rights
 COURSE: LAW & JUSTICE IN A
GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: GLOBALIZATION OF LAW AND
ODISHA LEGAL THEORY (WEEK 2)
INSTRUCTORS: PROF. RAO

bureaucracies to make, the information and their investigation which they have relied on for
enacting public policy, publicly available.

The written constitutions, in the era of globalization, insist on separation of powers,

guarantees individual rights, establishes constitutional courts and ensures judicial reviews.
The American model of bill of rights and judicial review has now become the global model.

GLOBALISATION OF PROTECTIVE LAW

We can see the globalization in the realm of torts, product standards, consumer protection,
labour protection, and most recently in environmental law as well with the changes in
technology and the industrial revolution. The consumer goods like automobiles etc are very
complex and these days we cannot employ the rule of caveat emptor. Even in the business
organizations, instruments like share, bonds and other securities, the rules applicable to such
instruments and corporate governance rules are there to afford protection to the investors.
Globalisation of protective law here refers to the worldwide increase of legal protection
against the ill effects of technical, economic and social factors which are too complex, distant
or powerful against the individual cannot protect himself/herself alone. However, the global
patterns in the field of protective law are not uniform. There is an ongoing conflict between
globalization of market and globalization of protective law.

CAN THERE BE GLOBAL LAW?

The current stage of harmonization shows that although having a globalized law is far from
reality, we can see a trend of harmonization.

We can take the example of the European Union General Data Protection Regulation
(GDPR). The framework of the GDPR has caught up with the idealistic notion of global law
and also seems to have defied the traditional forms of globalization of law discussed earlier.
As we all know, the GDPR aims at protecting individual personal data and regulate how
personal data is collected, handled, processed and used. A very interesting implication of this
regulation is how it has an increased territorial scope. Article 3 of the GDPR imposes GDPR
compliance not only to companies located within the EU, but also companies outside the EU
 COURSE: LAW & JUSTICE IN A
GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: GLOBALIZATION OF LAW AND
ODISHA LEGAL THEORY (WEEK 2)
INSTRUCTORS: PROF. RAO

who process data of EU subjects in certain situations.4For instance, if an Australian company

processes data of EU individual, then irrespective of its lack of presence in the EU, it would
be subject to GDPR compliance. This means that if any company in the world seeks to collect
and process personal data of any EU subject, they would have to comply with the GDPR.
What is even more surprising is that even if a corporation has no direct business in the EU, if
they service clients in other regions who process data of EU subjects, the corporation can be
subject to GDPR compliance if the data of EU subjects has been shared with them. For
instance, if an Indian company provides services to an US-based company, and this US-based
company collects and processes personal data and information of EU subjects, the Indian
company shall be subject to GDPR compliance if the US-based company has shared the data
of EU subjects with it.

Even the recently released Justice BN Srikrishna Committee report on Data Protection5along
with the Draft Personal Data Protection Bill, 2018,6suggested a privacy law for India, which
has drawn its inspiration from the GDPR. In the wake of Cambridge Analytica scandal,
almost all the countries are strengthening their data protection laws.

4
General Data Protection Regulation, Article 3 (2016).
5
SaveOurPrivacy, ‘Srikrishna Committee Report And Draft Data Protection Bill – Initial Statement’, LiveLaw
(25 Dec 2018), https://www.livelaw.in/srikrishna-committee-report-and-draft-data-protection-bill-initial-
statement/.
6
The Personal Data Protection Bill, 2018, (25 Dec 2018),
<http://meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill%2C2018_0.pdf>.
 COURSE: LAW & JUSTICE IN A
GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: GLOBALIZATION OF LAW AND
ODISHA LEGAL THEORY (WEEK 2)
INSTRUCTORS: PROF. RAO

DISCUSSION FORUM

Do you envisage a truly global law in the near future?

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SELF-ASSESSMENT QUESTIONS

Question 1:Kindly assess if the following statements are true or false:

(i) UNCITRAL has helped in the globalization of law.
(ii) WTO has not contributed to globalization of law.
(iii) Lex Mercatoria is not a result of globalization of commercial law.
Answer 1:
(i) True
(ii) True
(iii) False

Question 2:Do you think if there is a conflict between globalization of markets and globalization of
law? Support your answer with reasons. (maximum 500 words)
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REFERENCES

1. Shapiro, Martin, ‘THE GLOBALIZATION OF LAW’, Indiana Journal of Global Legal

Studies (1993) Vol. 1, Issue 1, Article 3, (25 Dec 2018)<
 COURSE: LAW & JUSTICE IN A
GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: GLOBALIZATION OF LAW AND
ODISHA LEGAL THEORY (WEEK 2)
INSTRUCTORS: PROF. RAO

https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1002&context=ijgls>.
2. Terence C. Halliday and Pavel Osinsky, ‘GLOBALIZATION OF LAW’, Annual Review of
Sociology, (2006) Vol. 32, 447-70, (25 Dec 2018)
<https://www.jstor.org/stable/pdf/29737747.pdf>.
3. Pierrick Le Golf, ‘GLOBAL LAW: A LEGAL PHENOMENON EMERGING FROM THE
PROCESS OF GLOBALIZATION’, Indiana Journal of Global Legal Studies (2007) Vol. 14,
Issue 1, Article 7, (25
Dec2018)<https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1347&context
=ijgls>.
FURTHER READINGS

1. Reuven S. Avi-Yonah and M. S. Barr, ‘GLOBALIZATION, LAW AND DEVELOPMENT:

INTRODUCTION AND OVERVIEW (Globalization, Law and Development Conference)’,
Michigan Journal of International Law, (2004) Volume 26(1), 1-12.