6 - Global administrative law: challenges

Summary

1 Introduction

The previous chapter considered the foundations of global administrative law; the present chapter addresses the challenges posed by this development, distinguishing between challenges of a horizontal and a vertical nature.

The horizontal challenge builds on existing scholarship by examining the more particular doctrinal features that are commonly said to comprise global administrative law, and the difficulties of applying these at the global level. Benedict Kingsbury, Nico Krisch and Richard Stewart defined these essential features as

the mechanisms, principles, practices, and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies, in particular by ensuring they meet adequate standards of transparency, participation, reasoned decision, and legality, and by providing effective review of the rules and decisions they make.

Similar doctrinal features are found in the work of other authors, notwithstanding differences of nuance and degree. Commentators generally agree that the intellectual origin of these doctrinal principles lies in national administrative law, while at the same time stressing that their application to global governance poses particular problems, with the consequence that domestic public law precepts cannot simply be cut and pasted onto the global level. We need, however, to press further to understand more precisely how administrative decision making and rule making are legitimated at national level, and the difficulties of transposing such techniques to the global sphere. This will in turn shed light on how these difficulties may be surmounted, or how they may be alleviated in other ways.

This is followed by discussion of the vertical challenges, which take the form of interaction between legal orders. This is evident in relation to individual decisions made at the global level, which are felt to be deficient when judged in terms of administrative law precepts that pertain at the national and regional levels. The relationship between legal orders also covers the broader impact of the transfer of regulatory power to the global level, and the impact that this has on regulatory regimes and administrative law at the national and EU levels.