New Working Paper: Jurisdiction Unbound

I have a new working paper out: “Jurisdiction Unbound: Global Governance through Extraterritorial Business Regulation”. It is part of our PATHS project on change and stability in international law and tries to understand how the – traditionally very territorial – international law of jurisdiction has responded to pressures for change in a globalizing world. The upshot of the argument is that, despite much continuity on the surface, the categories of jurisdiction available to states have been transformed in such a way as to be virtually ‘unbound’ today. This expansion supports the unilateral regulation of global markets by powerful states, thus creating a structure of global governance in disguise. Acknowledging that jurisdiction is so closely interwoven with governance – and is not merely an expression of equal sovereigns in the international order – is the first step to tackling the accountability problems posed forcefully by unilateral regulation. The full abstract is below, the paper here. Comments welcome!

The international law of jurisdiction is faced with far-reaching changes in the context of a globalizing world, but its general orientation, centered on territoriality as the guiding principle, has remained stable for a long time. This paper traces how, in contrast to the prevailing rhetoric of continuity, core categories of jurisdiction have been transformed in recent decades in such a way as to generate an ‘unbound’ jurisdiction, especially when it comes to the regulation of global business activities. The result is a jurisdictional assemblage – an assemblage in which a multiplicity of states have valid jurisdictional claims without clear principles governing the relationship between them, creating a situation in which, in practice, a few powerful countries wield the capacity to set and implement the rules. Jurisdiction is thus misunderstood if framed as an issue of horizontal relations among sovereign equals but should rather be regarded as a structure of global governance through which (some) states govern transboundary markets. Using a governance prism, this paper argues, can help us to gain a clearer view of the normative challenges raised by the exercise of unbound jurisdiction, and it shifts the focus to the accountability mechanisms required to protect not only the rights of targeted companies but also, and especially, the self-government of weaker countries.