Originally uploaded at SSRN.

Abstract

Business entities play important and underappreciated roles in the production of international treaties. At the same time, international treaty law is hobbled by state-centric presumptions that render its response to business ad hoc and unprincipled.

This Article makes three principal contributions. First, it draws from case studies to demonstrate the significance of business participation in treaty production. The descriptive account invites a shift from attention to traditional lobbying at the domestic level and private standard-setting at the transnational level to the ways business entities have become autonomous international actors, using a panoply of means to transform their preferred policies into law. Second, the Article analyzes the significance of these descriptive facts, identifying an important set of questions raised by business roles in treaty production. Specifically, business participation could affect the success or failure of treaties along a number of different axes that this Article identifies: participation, process, substance, and compliance. Third, observing that scholars and lawmakers could seize an opportunity to design a theoretically principled legal response to business roles in treaty production, the Article identifies both potential legal structures and reasons why law in this arena could be beneficial. Among other reasons, law could facilitate treaty effectiveness along the dimensions this Article identifies; enhance treaty legitimacy by ensuring that decisionmakers are accountable to the relevant stakeholders; and foster rule of law values such as certainty and procedural stability, which could aid public and private participants alike.

Ultimately, the facts the Article describes present a choice: International law can respond in real time to business roles in treaty production, or it can let those roles evolve as they will, with uncertain and possibly enduring results.

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