Rethinking the Role of Law and Legal Institutions in Times of Crisis, by Emilie Ghio

1. The research group

1.1 The IRC Team

At the end of 2020, academics and industry professionals came together to form a research group looking at the way in which the COVID-19 has created new challenges for transnational civil and commercial law. The project and research group were granted the status of International Research Collaborative (IRC) by the Law and Society Association (LSA). IRCs are groups of law and social science researchers who undertake sociolegal research projects with a global reach. These collaborations strengthen law and social science scholarship by connecting them with theoretical, methodological and policy discussions taking place among researchers around the world.  

Our IRC – New Challenges for Transnational Civil and Commercial Law in the Wake of the COVID-19 Pandemic – is led by Dr Emilie Ghio (Edinburgh Napier University, UK) and Professor Ricardo Perlingeiro (Fluminense Federal University, Brazil) and has an international and interdisciplinary dimension. It brings together a diversity of disciplines around the topic of transnational civil and commercial law. For example, it brings together legal academics and doctoral students from the UK, Brazil and the US, as well as psychology and political science academics, industry experts and members of the judiciary.

The uniqueness of the group comes from the fact that discussants hold different views on a same principle due to their different areas of expertise and jurisdiction of origin. This diversity is welcomed as it illustrated the richness, yet complexity of the debates around global crises, especially the COVID-19 health pandemic.

The objectives of the IRC are to:

  • create an international research network amongst academics and universities;
  • deepen the law and social science scholarship on transnational civil and commercial law challenges;
  • inform academic and industry discussions taking place worldwide around the effects of COVID-19 and more broadly, of international crises.

1.2 The IRC outputs and activities

One of the main issues studied and discussed by the IRC is the uncertainty that usually comes with crises. When global challenges – such as COVID-19 hit – lawmakers, governments and policymakers often have to act rapidly and at a large scale across a wide range of policy areas. While it is important that these actors think in immediate terms, it is paramount that they look beyond the immediate and that policy decisions propose long-term solutions as well.  

The IRC has been actively engaged in various activities and has produced different outputs. In 2020, it organised a roundtable at the LSA Annual Meeting. Emilie Ghio and Ricardo Perlingeiro subsequently published extended abstracts in English and Portuguese in a special issue of the Juris Poiesis journal. They also co-edited an e-book on the findings of the roundtable discussions. The book is entitled Theory and Practice of General Principles of International Legal Cooperation: a Thematic and Comparative Approach.

The research group gathered a second time in 2021, at the Annual Meeting of the LSA in Chicago. The focus of the meeting was on the role of law and legal institutions in times of crisis. A second e-book (Rethinking the Role of Law and Legal Institutions in Times of Crisis) featuring the findings of the discussions is forthcoming. It will be published by NUPEJ, the Centre for Judiciary Sciences (Núcleo de Pesquisa e Extensão sobre Ciências do Poder Judiciário).

2. The research project

Transnational civil and commercial law has been in constant evolution in the last decades. This is due, in particular, to increased globalisation and the disappearance of the nation-state, which used to give rise mostly to domestic disputes. The world is increasingly interconnected; people and companies move freely across borders and establish themselves in foreign jurisdictions. Associated with these movements have been numerous legal changes on a transnational scale.

Transnational civil and commercial law has therefore had to adapt, regularly, to a constant flux of challenges, such as the growth of multinational companies and international production networks, new technology, changes in the nature and form of work, and the rise of new actors on the international scene. The most recent global challenge is the COVID-19 pandemic, which has forced many countries around the world to impose special measures on their populations such as self-isolation and restriction of movement and assembly, thereby directly affecting legal relationships.

This research project was thus born from common concerns in the academic and industry community of the devastating impact of the COVID-19 crisis on the legal landscape and practice, which came at a time where the world was grappling with an unprecedented number of other challenges.

Indeed, the word ‘crisis’ is not merely common anymore; it is everywhere. While some crises are contained within national borders, they are also increasingly global. This is not surprising in an ever more integrated, international economy, which confronts most countries with similar economic, political, social and environmental issues.

As we navigate these connected set of crises – the COVID-19 health crisis and its economic ramifications; the political and legal crises in the EU (Brexit; the rule of law; etc.); the lingering effects of the global financial crisis of the late 2000s; the climate change crisis; and the diverse human rights crises – it is clear that we are at an unprecedented moment of reckoning.

The research group has investigated, inter alia, how law has, at times, contributed to these crises and at other times, helped solving them. One of the findings reached is that global crises have highlighted two opposing tendencies:

(i) increased cooperation and an organic phenomenon of legal convergence as countries find common solutions to common problems; and

(ii) a preference for state-centric solutions, which prioritise domestic interests, reject international interference and harmonisation efforts and an overarching protection of domestic sovereignty.

3. What next?

Emilie and Ricardo are currently preparing the third meeting of the research group. Participants will gather in Lisbon (Portugal) in July 2022. The organisers will invite current IRC members, as well as external speakers with an interest in the harmonisation and convergence of law to discuss how international harmonisation efforts can assist post-COVID recovery and support future legal developments.

Globalisation generally, and European integration more specifically, have led to the minimisation of legal diversity, which can result in transaction costs and the lack of level-playing field for cross-border actors. One of the prevailing methods to achieve such level-playing field is legal harmonisation.

A discussion of legal harmonisation is particularly relevant during a time when, in addition to the current health crisis brought about by the COVID-19 pandemic, globalisation and European integration seem to have lost some of their shine. The last decade or so has unfolded in a rather dramatic way. 

In his book The Harmonisation of National Legal Systems: Strategic Models and Factors (Edward Elgar, 2018), Antonios Platsas questioned ‘what the legal harmonisation thesis [has] done to thwart certain or all of the above? Or, even more provocatively, is this the right time for one to engage oneself with another legal harmonisation discussion?’ To answer this question, it is exactly the right time to revisit the question of harmonisation.

Even in an era of accelerated globalisation, legal systems remain deeply rooted within the structure of the nation-state. The laws and regulations that individuals and undertakings deal with, including those inspired or promoted by supranational institutions, are usually drafted by domestic legislatures. Distinctive national legal cultures are at the heart of law schools’ curricula and popular culture, as well as domestic legislatures and government bodies. They are therefore entrenched within domestic legal systems and exhibited in domestic legal texts.

Therefore, underlying the various crises confronting the EU and the world more globally, lies a problem very much intertwined with the matter of harmonisation, since current issues such as the legitimacy and validity of international efforts, particularly salient in times of crises, are best identified by analysing the objections against harmonisation.

Poste by Emilie Ghio (Edinburgh Napier University, UK)