Paper short abstract:

This paper reflects on the potential and challenges of the emergent use of indicators within a human rights and trade context, critically analysing two recent initiatives within international human rights law that prominently rely on indicators in order to conceptualise and monitor human rights.

Paper long abstract:

This paper aims to reflect on potential implications for the understanding of human rights, and states' obligations to respect, protect and fulfil them, arising from the rise to prominence in recent years of the use of indicators and more recently, human rights impact assessments to define, identify, assess and monitor the status of human rights.

It draws from critical theory and ethnography to highlight ways in which the use of numbers, with their aura of objectivity, truth and value neutrality can conceal both their political and theoretical origins, as well as the subtle yet profound shifts in governance implied by their use. Though there is a pressing need to enumerate the content of rights and monitor their realisation, this paper argues that this form of 'knowledge technology' may well have profound implications for how human rights infringements and violations are conceived, monitored and ultimately remedied in the future, and especially so in the context of globalisation where both domestic and international law are deeply challenged to effectively address human rights concerns. Within the realm of international human rights law, recent indicator-like developments have attempted to address the human rights impacts of trade. These offer a revealing insight into the potential and the challenges of this type of initiative and highlight the necessity for a cautious and reflective approach in order to minimise unexpected and unwelcome consequences for the conception, comprehension and progressive realisation of human rights within a trade context.

Paper short abstract:

This paper aims to study the growing importance that new instruments of regulation - code of conducts, indicators, auditing and standardization- are gaining in the process of resolving international commercial disputes through international arbitration.

Paper long abstract:

International arbitration is a legal sector particularly favorable to innovation and to the removal of artificial barriers between different areas of law and between scientific disciplines. Since the award must meet the requirements of highly-demanding and specialized multinational companies, international arbitration is the optimal ¨testing ground¨ of innovative experiences, such as the taking into account of soft law and lex mercatoria, the ¨direct translation¨ of economic parameters into legal consequences, etc.. Within this framework, new instruments of regulation such as code of conducts, indicators, auditing and standardization also require detailed attention, as they are gaining weight in the arbitral response to disputes arising from the current global market. It is desirable that the tendency to create "frontier arbitral awards" -in the sense of awards at and beyond the frontiers of disciplinary boundaries and in the service of excellence results- comes to permeate the classic forms of law, since the complex current economic reality has dethroned the national state law as monopolistic solution to international problems.

Paper long abstract:

Globalization is changing law: market with its in-formal rules seems to replace the old positive law. The sociology of law has indicated legal transformations in terms of lex mercatoria, the Unidroit Principles, codes of conduct, etc. (Ferrarese 2006; Galgano 2005; De Sousa Santos, Rodríguez-Garavito 2005; Teubner 2005). The Kelsenian pyramid - the strong metaphor of the positive law - has been replaced by the net (Ost, Van de Kerchove 2002; Pastore 2003) where a new law, coming spontaneously from below as a product of the economic and social agents activity (transaction, agreements, financial operations), is showing the weakness of the national and international law. In this context where the legislative power seems to be unable to protect human rights and to warranty social justice (De Sousa Santos, Rodríguez-Garavito 2005) different forms of regulatory techniques (Fudge, McCrystal, Sankaran 2012) and some jurisprudential decisions (national and international judges' decisions) are supplying the positive regulation, attempting to protect human rights. Aim of this paper is to show how in times of globalization regulative law with its instruments is changing and how alternative regulatory techniques, such as national and international jurisprudence, are trying to protect human rights. I also will explore these issues examining some legal cases, such as the Nike's scandal in Pakistan.

Paper short abstract:

This presentation explores the increasing use of indicators in international trade regulation and adjudication. It will mainly focus on the use of "rule of law" indicators in international investment law and international arbitration.

Paper long abstract:

This presentation aims to show the increasing use of indicators in international trade regulation as well as the consequences this use conveys for international commercial and trade law. Indicators set standards that, in spite of being sometimes loosely enforceable from a classic legal perspective, partly constitute the transnational normative framework within which global commercial and investment transactions take place. Indicators contribute to stabilizing behaviour and legal expectations where classic forms of law are at pains to provide effective rules. This presentation will mainly focus on the use of "rule of law" indicators and their application in international investment law and international arbitration.

Paper short abstract:

The RSPO regulates environmental and social problems around palm oil production by a system of certification. How do different local actors involved in conflict use this regime for their interests in the localities of production? And how does that alter environmental and social consequences?

Paper long abstract:

The production of palm oil causes a variety of environmental and social problems. Campaigns by NGOs, concern of Western consumers and corporate risk management has led to a certification initiative which claims to regulate part of these issues.

Certification regimes are constructed by a range of heterogeneous actors in a range of heterogeneous practices and places. It is about consumption, about marketing, about supporting policies and campaigning. It is about processing, about procurement, transport and trade. But perhaps foremost it is about conflict related to local production practices, about land use change, about property rights and access to land, about labour relations, about deforestation, waste disposal and degradation of soils. How do the interrelations between these practices together affect processes of negotiation in local conflicts?

This paper will approach the issue of certification as a web of interrelations between these heterogeneous practices. This research approach focusses on how actors involved in local conflict use these regimes and reproduce them locally in such a way that it fits their interest in contexts of plural legal regimes, and on how that alters environmental and social consequences.

It proposes an ethnographic approach of the different practices and localities that together shape the meaning of certification regimes and emphasizes the interrelations between these practises.