November 29

Jarrod Hepburn: Global Administrative Law and the Role of Domestic Administrative Lawyers

The newly-emerging field of Global Administrative Law (GAL) is based on the insight that much administrative action transcends national borders. GAL recognises that many problems have grown too large to be regulated entirely within national jurisdiction, and are now addressed via ‘transnational systems of regulation or regulatory cooperation’, ‘shifting many regulatory decisions from the national to the global level’.

GAL scholars thus advocate an ambitious research agenda studying ‘the legal rules, principles, and institutional norms applicable to processes of “administration” undertaken in ways that implicate more than purely intra-State structures of legal and political authority’. The field is deliberately multi-faceted. It includes analyses of decision-making by international organisations such as the United Nations, considering ways in which exercises of power (such as Security Council decisions placing named individuals on sanctions lists) might be meaningfully covered by administrative law principles of participation, transparency, accountability or review. GAL scholars make similar inquiries into the decisions of intergovernmental, hybrid public-private, and private bodies, such as the Internet Corporation for Assigned Names and Numbers, the World Anti-Doping Agency or the International Organization for Standardization. GAL also includes what is sometimes separately termed ‘international administrative law’, which covers the work of bodies such as the UN Dispute Tribunal or the World Bank Administrative Tribunal.

A further element of GAL – of particular interest to domestic administrative law scholars – is its recognition that many areas of international law function somewhat analogously to domestic administrative law systems, providing rules and standards that control national administrative conduct. This conduct can be reviewed by international adjudicatory bodies such as human rights courts, the World Trade Organization’s panels and Appellate Body, or investor-state arbitral tribunals established under investment treaties. In the case of the latter, claimants may bring international arbitration proceedings challenging a national administrative decision even without first seeking review by domestic courts. The investment tribunal then serves as the first-instance review body, performing a function quite similar to a domestic court exercising administrative jurisdiction. Commentators have highlighted a wide range of doctrines familiar from domestic administrative law (including transparency, due process, reasonableness and proportionality) which are beginning to appear in the case-law emerging from these international bodies.

GAL’s progress is certainly still in its early stages. As I have previously argued in relation to one such doctrine, the duty to give reasons, the extensive debates which characterise domestic administrative law jurisprudence have not been replicated amongst international adjudicators as yet. However, the case-study of the duty to give reasons demonstrates, I suggest, that domestic administrative lawyers have much to contribute to the nascent field of GAL.

Domestic courts have identified several possible instrumental and intrinsic rationales for the duty to give reasons. The ‘accuracy’ rationale suggests that forcing administrators to give reasons for their decisions will lead them to make better, more accurate decisions. The ‘review’ rationale suggests that the provision of reasons facilitates review, in part by providing information on the relative expertise of the initial decision-maker. The ‘public confidence’ rationale suggests that reason-giving serves as a public demonstration that laws are being applied consistently and carefully. Meanwhile, the ‘respect’ rationale justifies reason-giving on the ground that explaining a decision to an affected party shows due respect to their intrinsic personhood.

Domestic courts have appreciated that the scope of the duty imposed can be affected by the rationale chosen: for example, the ‘respect’ rationale might support a wider scope for the duty than the ‘accuracy’ or ‘review’ rationales. They have also appreciated that judicially imposing such a duty at all places an additional burden on administrators, which must therefore be outweighed by the demands of natural justice before such intervention is warranted in the absence of clear text.

By contrast, international courts and tribunals show much less awareness of these debates. They have accepted that a reason-giving duty should be imposed, but with little inquiry into the concerns that have kept it from being imposed without complaint across domestic administrative law systems. Human rights and WTO cases have privileged the ‘review’ rationale, while – perhaps surprisingly – it is only certain investment tribunals that have clearly drawn on the ‘respect’ rationale. Other investment tribunals have offered no rationale at all. There is thus little consistency in the rationales offered, and little apparent understanding of the consequences of this.

Certainly, this is only an emerging view, based on relatively limited international case-law available, and based on only one administrative law principle. The international ‘judiciary’ is far more diverse than in domestic systems, with adjudicators coming from varied backgrounds, and often with jurisdiction only over defined areas (trade, investment, human rights, etc). It may be too much to ask for consistency in this embryonic branch of GAL.

International law does not yet provide perfect analogies for the existing doctrines of domestic administrative law common to many jurisdictions. But domestic administrative lawyers can play a role in shaping this development. GAL is of course not value-free; some contend that it ‘embraces current power structures and inequalities by militating for incremental reforms rather than radical revision’. Whether or not the desirability of a global administrative law is accepted, its growing presence is nonetheless evident. The expertise and insights of domestic administrative lawyers have much to offer to the GAL project.

Jarrod Hepburn is a McKenzie Postdoctoral Research Fellow at Melbourne Law School, University of Melbourne. His research interests lie largely in international economic law and general international law. Jarrod is the author of Domestic Law in International Investment Arbitration (Oxford University Press 2017), and his work has appeared in journals including the International and Comparative Law Quarterly and the Journal of International Dispute Settlement.