II. The Dynamics of Global Law

A. Creative destruction and broadening the field of norms—is global law really law?¶

Globalization produces two kinds of effects. First, it affects, threatens, and weakens classical rules and institutions, in particular national legal systems, but also (in our own context) European law and international law. A notable example is the now often described phenomenon of the ‘race to the bottom’. However, the fascination that stems from this spectacular and worrying deconstruction often tends to eclipse or to conceal other quieter phenomena, which develop at the same time. For social nature seems to loathe legal voids and the weakening of Leviathans and other dinosaurs of modern law appears to open an ecological niche favourable to the proliferation of other normative organisms, which take on various shapes and which invest in the rubble and the interstices between national laws and international law. These new creatures of the normative bestiary (sometimes resulting from older stems, already identified in the legal taxonomy) also deserve a careful study as embryos of new potential normative apparatus.

This gives rise to a serious doubt as to the legal qualification of these emerging sets of norms and as a result as to the competence of lawyers to deal with them. Modern law does not include the whole field of normativity, even if it claims to rule it. Law is only a form of social regulation among others, with precise characteristics, for example the articulation between primary and secondary rules in Hart’s concept of law.¹ The norms that are dealt with here do not usually fit into such a frame. Thus, the legal theorist can quite rightly claim that those norms are not of legal nature and reject also the concept of ‘global law’ for that reason. But what should be concluded from that? If we deduce that those norms do not concern lawyers or legal theoreticians who would not be cut out to deal with them because those norms are not part of the definition of law, such a conclusion would not satisfy the pragmatist, nor would it satisfy anyone relatively curious. From a pragmatic perspective, lawyers can—and even must—take an interest in those norms because they produce or attempt to produce regulation effects, to such an extent that they compete with, or even tend to replace classical legal rules. To take up a concept useful to comparatists, some of those norms potentially operate as ‘functional equivalents’ of legal rules.² They cannot be left exclusively to other social sciences. The legal philosopher must take an interest in them, even if it implies an expansion of the province of jurisprudence and of law’s empire. This large conception of the philosophy of norms is, as it happens, not new, but remained commonplace at least until the eighteenth century. The work of Jeremy Bentham, for example, shows the fertility of such an approach for philosophy and for law.³

B. The race to the bottom and the global market of national laws¶

Roughly summarized, globalization is a new phase in the evolution of capitalism and more largely of the world society, in which some actors, that are no longer named ‘multinational’ but rather ‘transnational’, including notably (but not only) large firms, directly determine and coordinate their strategies on a global scale, and no longer by reference to one or several given countries or regions. The concept of ‘globalization’ is a concept first developed in microeconomics, that refers to the perspective of an actor on his environment. In legal matters, globalization should also be studied from a micro-legal perspective. Globalization places transnational actors in a new situation. They are no longer subjects of a pre-determined legal system, subjected to the constraints and if need be the sanctions of this system. Rather, they are placed before a fragmented landscape, a mosaic of legal systems, that roughly corresponds to the political map of the world, divided into states. This landscape itself is not new, since it was drawn first by modernity and then by decolonization. What is relatively new for many is the perspective and the opportunity of taking advantage of it. Indeed, transnational actors are, regarding this mosaic of legal systems, in a quasi-permanent situation of ‘forum shopping’—a concept developed in private international law and highly familiar to the readership of this book—ie in a situation where they do their shopping between the different national legal systems.

From such a micro-legal perspective, globalization certainly does not give rise to the creation of a global law, but rather results in a global market of national laws by the competition that it establishes between these legal systems. This thesis of regulatory competition and of the race to the bottom that it causes is not new. Indeed, it has been developed, in the domestic context of the US, since the first decade of the twentieth century, notably by Berle and Means, followed by Supreme Court Judge Louis Brandeis.⁴ Today, it can be adequately transposed to the world level, with the aggravating circumstance that, at this level, there is no federal state that could possibly temper its effects or regulate significant transfers of resources between states.⁵ States are very much concerned about attracting funds, activities, and operations on their territory to generate economic growth and as a consequence revenue, income, employment, and development. Therefore they are very willing to offer an attractive ‘normative package’ to economic actors, especially to firms.⁶ Those firms tend to give priority, up to a certain point, to the state that has the lowest requirements. The legal duties, in the largest sense and obviously including social security, fiscal obligations, and environmental constraints, are perceived as costs that are to be minimized in the unrelenting pursuit of profit maximization. We know this situation very well through the issue of ‘outsourcing’. This competitive situation leads to a normative ‘price war’, a war which is all the fiercer as the difference between the regulatory levels of legal systems competing on the planet is huge and as some states (the so-called tax, financial, or numerical safe havens) do not hesitate to resort to regulatory dumping practices to enjoy significant competitive advantages. We know that states that complain about that situation are for a large part those that have caused it. Indeed, financial markets as much as commercial barriers have been subjected to a deliberate policy of ‘deregulation’. That policy is itself grounded in a radical free-market ideology, whose effects are increased again by the economic and technical transformations, notably the unprecedented development of the world transportation and communication networks.

C. The natural law of the global market¶

Should we conclude from that ‘race to the bottom’, whose finish line is yet unknown, that there is a decline of law in favour of a regulation of the world exclusively by means of mechanisms of the market economy? Some did not hesitate to predict that or wish for it, in particular the most radical supporters of liberal deregulation. From the perspective of legal theory, the ideas of those people fit into a frame that we have named elsewhere ‘natural economic law’.⁷ That law rests notably upon the general equilibrium theory of neoclassical economics, which claims that, in a ‘perfect market’ situation, optimal regulation of all operations is achieved through the price determination model of supply and demand. There is nothing very surprising here to the historian of ideas, if we care to remind ourselves that economics historically derives from legal science, when philosophers such as Adam Smith (who not only taught moral philosophy but also legal theory) sought to establish the natural laws that govern society and thus discovered the law of the market and the famous ‘invisible hand’. The state and its iron hand, on the one side, the market and its invisible hand, on the other side, are the two models of social regulation that have been handed down to us by modernity.⁸

This doctrine, according to which the state and more generally rules and regulations are not a solution but rather a problem⁹ and markets function better when left free from any public interference, has not remained purely theoretical, as we know, but has fed and legitimated massive deregulation policies at national, regional, and world levels. Most leaders of regulatory organizations and agencies are subjected to or strongly convinced by the ideology of the natural economic law and the standard economic theory. Not only does that ideology contribute to the dismantling of national regulations, but it also obstructs the settling of new rules or institutions at the regional and world levels. Even in the classical cases of market failures, when the intervention of public authorities is deemed unavoidable, those authorities put hybrid mechanisms in place (interesting UNOs) that aim at establishing ‘artificial markets’ such as, for example, in the field of the fight against climate change, the tradable pollution permits.¹⁰

Yet, and despite all the power of that ideology and the interests that support it, the empirical observation of the changes occurring in the different sectors of the global society does not confirm but in fact contradicts the theoretical hypothesis of the regulation of trade exclusively by the natural law of the market. Several reasons enable us to explain that fact. Firstly, and this is well known, the regulation by means of the market paradoxically requires a very large preliminary work of institutionalization but also the establishment and the effective implementation of numerous rules and procedures to guarantee its smooth functioning. That is not only true for artificial markets, such as carbon markets, set up within the framework of neoliberal policies,¹¹ but also for classic markets in goods, securities, and services, as the analysis of the causes of the bank crisis of 2008 convincingly shows.¹² Indeed, one mustn’t confuse the state of nature with the market: the market is not nature or, rather, it is a ‘second nature’, as philosophers say, but which need to be instituted by the law.

D. The struggle for law¶

Secondly, and most importantly, field observation of the behaviour of actors, whoever they are (public and private; traders or not), teaches us that those actors seem far from being satisfied exclusively with the providential action of the invisible hand. Rather, they develop a sustained and sometimes intense activity, formulate claims, and take numerous initiatives with regard to either the demand or the supply of norms. In the course of our field studies, we noticed that ‘global players’ are quite clearly in demand of norms and that norms are indeed produced in the course of interactions. This is due to multiple and varied reasons, that are not necessarily new: to standardize the features, quality, and interoperability of products and services; to encourage the division of labour and the globalization of production and trade; to stabilize expectations and to guarantee operations; to reduce the uncertainty and risks associated with them; to coordinate the action plans of actors; to structure networks and interest groups; but also to spread interests, values, behaviour patterns and make them prevail; to acquire, maintain, reinforce, or fight for positions of power; to legitimate some aspirations as ‘fair’ by universalizing them; etc.

By way of answer, multiple undertakings aimed at producing norms have been emerging and prospering within the global environment. Their various means and techniques range from the improvised do-it-yourself to the most sophisticated normative engineering. A number of those techniques mobilize existing legal rules, procedures, or institutions. Let us not forget that the global society was not born from nothing, but is the product of history, itself loaded with legal materials. Admittedly, those materials are ill-adapted to the global context. But they nevertheless remain available and recyclable for new constructions even though those have a radically different logic, aim, and scope from the sets from which they are extracted. Aside from the mobilization of classic legal tools such as contracts, torts, corporate law, or arbitration, a few novel methods are worth mentioning: the new expansion or new recipients to international texts¹³ or the multiple attempts to give extended extraterritorial effect to national or regional rules;¹⁴ diverse phenomena of ‘diffusion of law’¹⁵, like so-called ‘transplants’¹⁶ or ‘downloads’ of norms;¹⁷ the regulation effects produced by the—sometimes accidentally—combined action of rules from different orders.¹⁸ Another phenomenon, highlighted by Saskia Sassen, is the ‘capture’ of some state regulation agencies, such as monetary and financial regulation authorities, in the service of a global agenda,¹⁹ including, in some cases, national judges.²⁰

Other apparatus are hybrids of legal rules and other normative fields: the aforementioned economic regulation through artificial markets or the incentives that Bentham calls ‘indirect legislation’;²¹ the technological ‘constraints’, standards, and codes, notably in the IT area of communication networks²² and virtual worlds; the management standards, notably the indicators used for evaluation and governance;²³ the technical standards, including the extending scope of ISO standards and more generally the colonization by technical standards of fields recently covered by classic legal rules (health, security, environment,²⁴ etc).

Observing those phenomena teaches us that global society is not a lawless environment, a place without norms. Nor is it a large market regulated exclusively by the law of supply and demand. It is a complex, fragmented, risky, and uncertain environment in which various actors pursue their own goals and thus aim to establish norms that are favourable to their interests, so as to consolidate or strengthen their positions. The global environment may be compared to the state of nature. However, this state of nature is the arena not only of a struggle for life (as Hobbes told us) or of a competition for scarce resources (as in economic theory), it is also an arena where a ‘struggle for law’ is taking place, to use the expression created by the German jurisconsult Rudolph von Jhering.²⁵ Even if we conceded that legal rules are but a means to an end, an element of the superstructure that can ultimately be reduced to the economic infrastructure,²⁶ they are valuable assets, sources of power that are sought for their own sake.²⁷ Thus the aim is to study whether or not, and if so how, in the absence of a supreme arbitrator (Jhering’s sovereign state), the interplay of competing interests and the struggle for law that it causes can lead to the emergence and stabilization of normative apparatus.

E. ‘Pannomie’¶

In the state of relative anarchy in which global society develops, the ability to propose and lay down rules is no longer limited to national parliaments and government institutions, nor even to international organizations. There is no such thing as a ‘proper’ global legal system. Indeed, there is no monopoly on the power to enact rules and to impose them on others, nor are there any rules or procedures for deciding between competing rules. It follows that all the actors involved attempt to produce, endorse, and to enforce by themselves the rules that best suit them. Let us take the typical example of codes of conduct: there are codes established by states, by international organizations (eg the UN’s global compact), and also by firms, by NGOs, or even by private experts.²⁸ Thus global society is not characterized by a state of anomie. On the contrary it is characterized by a state of what we could call ‘pannomie’, where norms spring up from everywhere, enacted by improvised legislators, public or private.

That situation obviously impacts interactions on the global scene, where some players attempt to define, modify, or stabilize the ‘rules of the game’ in the course of their relationships. It bears some resemblance to the very particular chess game described by Wittgenstein in his Philosophical Investigations, in which each player can choose, with each turn, either to move a chess piece or to change a rule.²⁹ Of course, this extreme proliferation of rules is harmful to their effectiveness. As Wittgenstein rightly observes, following a rule means following the same rule.³⁰ If each and everyone follows their own rule, it is as if there were no rules at all.

In the absence of procedure or rules for deciding between competing rules, how will certain rules succeed prevail over others? How, in the struggle for law, is the selection of the fittest one made? There is no single answer to this question. However, on several occasions, we were able to find that the emergence and crystallization of new norms only occurs in a later phase. Indeed, those processes presuppose the identification of a ‘fixed point’ around which the sedimentation eventually takes place.

F. New points of control¶

In global law, anybody can be a self-proclaimed legislator. But there is more to it: some can establish themselves as ‘policemen’, provided that they have effective means of control over the behaviour of others. Or rather—since this is how it usually happens—the agent in control can be invested by others (often unwillingly) with the duty to keep actors under surveillance and to intervene when it is necessary. Those agents are invested by public or by private groups and are urged or put under pressure to take responsibility and act as controllers.

In the various fields that we have studied, the search and identification of ‘points of control’³¹ or ‘gatekeepers’³² often preceded the enactment of the rule. In other words, the policeman and the judge emerged somewhat before the legislator, which probably comes as no surprise to legal historians. In several sectors, one can observe the emergence and development of new points and procedures of control which perform a ‘quasi-regulatory’³³ function of ‘global monitoring’.³⁴ Most dramatic is the case of rating agencies in financial markets.³⁵ But this is also the case of rankings that measure and compare everything from universities around the world³⁶ to the compliance by states with human rights standards and the rule of law.³⁷

In addition to those benchmarking tasks performed by professionals, there are actors in other sectors who are completely unrelated to those information and surveillance functions yet who are invested with a mission of regulation and control, because of their specific position in the organization of production and trade. Those actors also came under broad pressure to bear, often unwillingly, a regulatory function for which they had not been destined and for which they had little means and legitimacy to perform. This is notably the case of internet service providers (access providers, hosting providers, search engines . . . ), but also of powerful brand companies (like Nike or Apple) which are de facto controlling the entire supply chain of their products. Those two examples, which were thoroughly investigated at the Perelman Centre, are further explored in the following subsections.

G. Internet content regulation¶

In the 1990s, the internet was considered, above all, as a lawless place for several reasons.³⁸ First, it was deemed impossible to regulate and was specifically designed for that purpose. Moreover the internet culture has been driven by the capital goal to ensure the free flow of information: the main players would try to overcome all obstacles of any kind, whether technical, political, or legal, limiting the exchange of data. That culture even led to the publication of a ‘Declaration of the Independence of Cyberspace’ which denied any legitimacy to the intervention of states, and even challenged them to regulate the internet. Furthermore, while the internet was largely dominated by the United States, any public interference aimed at banning or controlling some kinds of questionable content was deemed to violate the First Amendment of the US Constitution. Several laws by US Congress, like the Communication Decency Act (CDA) and the Child Online Protection Act (COPA), were actually struck down by federal courts and the Supreme Court of the United States. Finally, before the internet bubble, the faith showed by governments in the economic potential of the new information society and the net economy, prevented them from interfering too much with the internet, so as avoid hindering its development. For all those reasons, states had, after a couple of vague attempts and several failures, more or less given up trying to regulate the new media and had decided to ‘laissez-faire’.

What happened? Interest groups made every effort to fight against certain content, either on grounds of a private interest (such as owners of intellectual property rights that are victims of counterfeiting), or on grounds of public interest (such as NGOs that fight paedophilia, racism, or hate speech). Those private interest groups identified a point of control of the internet: internet service providers (ISPs) and especially hosting providers, who host websites and other data on their servers. They then managed to exert significant pressure on ISPs by means of multiple legal proceedings. For example, in the famous French-American Yahoo! case, a French historian of the Shoah was alerted in the late-1990s by an American ‘pin’s’ collector of the auctioning of a huge range of various Nazi paraphernalia on the auction site of Yahoo!. French associations fighting against anti-Semitism and racism decided to target Yahoo! (which was far from being the only ISP involved, but which was, at the time, one of the most prominent ones) and to file a lawsuit against it in France. The aim was to force it to block access ‘on French territory’ to such objects and more generally to any racist content. That not only led to a great transatlantic legal battle—which the American giant did not manage to win—but more importantly to a major change of policy. Indeed, Yahoo! decided to ban hate speech and the sale of hate groups’ paraphernalia from its sites, not only in France, but also in the United States (although they are protected there by the First Amendment) and in the whole world. Under pressure, the other large auctioneers, like eBay, reacted in the same way. A ‘notice and take down’ procedure conceived in the US for copyright owners, then generalized in Europe and Japan, was put into place, turning hosting providers into unwilling and even reluctant censors of the internet, censors that are nevertheless quite effective, sometimes too effective.

Of course, the effectiveness of such controls depends on the structure of data flows and when those flows change, the pressure shifts. For instance, the development of ‘peer-to-peer’ networks for illegal downloads, where each person is his own host, shifts the pressure from the host provider to the access provider, as is notably the case in France with the Hadopi statute. Search engines, having become essential intermediaries between users and content editors, have also come under increasing pressure. Finally, there is the recent WikiLeaks case. Governments—notably the American Government whose legal power was weak if not non-existent with regard to domestic law—moved and spread the pressure from host providers and access providers to internet financial services providers: bank accounts, PayPal and credit card systems which supplied WikiLeaks were brutally blocked by those new appointed gatekeepers of the internet.³⁹

H. Corporate social responsibility¶

A rather similar mechanism can be found in the area of global reorganization of production and labour towards countries with a cheap workforce and low level of social protection. That question was brought to the international agenda by the United States and France during the negotiations that led to the establishment of the World Trade Organization (WTO). Those two countries had suggested introducing the possibility of excluding the countries that did not comply with minimal social standards from the benefits of free trade agreements. This so-called ‘social clause’ was rejected by the WTO. The issue was transferred to the International Labour Organization (ILO) which enacted a three-part declaration, a solemn statement that was not, however, legally binding in international law. It promulgated four fundamental rights at work, that were later taken up in the UN Global Compact. That Global Compact, called for by the General Secretary of the United Nations in the year 2000, has been widely undertaken by major companies around the world and has become part of the growing corporate social responsibility movement.

According to our analysis⁴⁰, this CSR movement is not completely spontaneous, but largely corresponds to the identification of large firms as possible ‘points of control’ in the global environment. For the past several years, some transnational firms, in particular those that sell branded products to the public while outsourcing the manufacture to subcontractors in low-cost countries, have been identified as points of control first by NGOs and other civil society activists, then by some states and international organizations which once more followed suit. Indeed, those firms, taking the place of failing or passive states, were targeted as both responsible and able to effectively contend exploitation of child labour, hellish working hours, dangerous or unhealthy working conditions, trade union banning, etc. Corporations such as Nike, for example, came under intense pressure from the media and public opinion and thus from their clients. Nike, like others, responded to that pressure by enacting a code of conduct, for obvious commercial reasons and to escape the void or vagueness of local law. The provisions of this code were then imposed through a chain of contracts to its subcontractors in India, China, Indonesia, Vietnam, the Philippines, etc. Nike even subjected those subcontractors to monitoring by Nike’s inspection services or by external auditors. Nike’s code of conduct provided sanctions—at worst the breaking of business relationships—in case of breach of its provisions. But this monitoring was carried out in a lax manner, and several investigations showed that working conditions remained appalling. Nike then suffered the backlash of its policy. Mr Kasky, a Californian activist in the area of consumerism assuming the function of ‘private prosecutor’, filed a legal proceeding for false advertising. That led to long and troublesome proceedings that Nike (not any more than Yahoo!) never managed to win, even by going right up to the Supreme Court of the United States. This affair forced Nike to change its social policy, to side-line its historical founder Phil Knight, whose reputation had been dented, and to put its acts of control in line with its code of conduct.

That affair and more generally the corporate social responsibility movement show us a transfer of the responsibility of control over working conditions in firms. Indeed, that responsibility was imperceptibly transferred from the local state—which is classically responsible according to private international law—and the international organization (ILO)—which is in principle competent but without any direct means of intervention ‘on the field’—to a private actor, the sponsor. That actor is not even the employer, but has been identified and put under pressure (by threat of damage to its reputation and thus to the value of its brand) as the one who de facto is able, thanks to his economic position, to exercise some control over working conditions, even though to start with he had no will, competence, and probably no legitimacy to take on such a role.

I. Transnational human rights litigation¶

Cases such as Yahoo! and Nike show that forum shopping is not only used by private actors—especially firms—to escape duties, taking advantage of the favourable conditions created by globalization.⁴¹ Indeed, the same technique is used by other players, notably NGOs, to subject those same firms to rules from which, it seemed, it was possible to escape, under the traditional rules of private international law and in particular the territoriality of police laws.

This opportunistic use of forum shopping for the purpose of implementing international standards of justice or to penalize the violation of fundamental rights is a very distinct hallmark of transnational human rights litigation. This type of litigation was highlighted in Europe with the Pinochet case. Pinochet was detained in England at the request of Spanish and Belgian investigating judges, who were acting on the appeal of Chilean victims of the dictator, even though an amnesty law protected him in that country. That type of legal action is increasingly frequently used to take proceedings against firms that are allegedly guilty of violations of human rights or of humanitarian law. For example, two large petrol companies—the French ‘Total’ and the American ‘Unocal’—were successively confronted with proceedings in the US, in France, and in Belgium. Those firms were charged with aiding and abetting crimes allegedly committed by the Burmese army (which was, on the other hand, immunized from proceedings on account of the absolute immunity of jurisdiction of states), as part of the exploitation of a gigantic gas field in Burma.⁴² In that case, the NGOs representing the victims used every procedural means available, notably active and passive personal jurisdiction, but also awaking an old law of 1789 in the US (the Alien Tort Claim Act), or even the universal jurisdiction statute enacted in Belgium (who for a while thought it good to offer in this global context ‘judicial hospitality’⁴³ to the whole world, before having to back down, under the pressure of the US). The case was in part political. It aimed to denounce to the tribunal of public opinion the crimes of the Burmese regime and to blame the Western gas companies for their shameful complicity. At the same time, the case aimed to get a court declaring Unocal or Total legally responsible for their behaviour to the victims. Although the case collapsed in Belgium after an epic battle that pitted the two highest courts of the country against each other, it resulted, in the US and in France, in a compromise allocating significant compensation to the victims.

Thus, some national judges become the disputed agents of a de-localized global justice. Indeed, victims (or the organizations representing them), deprived of the possibility of lodging an appeal before the internal judge and often also before the international judge, use all procedural means to make those agents the oracles of a budding global justice.

J. The standards wars¶

Once the point of control is identified, the process of rule-making has found an anchoring point upon which it can be built in a more or less elaborate and effective manner. A rule is adopted by the improvised controller. This rule is often imposed by those who managed to apply the pressure or negotiated among the main stakeholders, possibly with the intervention of states or specialized international organizations, whether intergovernmental or private, performing a function of standard-setting.

Those standards are obviously not unique and ‘standards wars’ quite often occur in this global state of nature, where each and everyone can proclaim himself legislator and attempt, with variable success, to impose his standard on others. Those conflicts of norms remind us somewhat of the technical standards wars that periodically occur in the technical and commercial areas, for example in the area of video formats (VHS vs Betamax) or more recently of the high definition DVD (Blue ray vs HD DVD), which also end up being arbitrated by the choice of their users.⁴⁴

China, for example, reacted to the development of the corporate social responsibility movement, to the declaration of the ILO on the fundamental rights at work, and to the various devices such as the SA 8000 standard or more recently the ISO 26000 standard, by proposing to firms in the textile industry or in the sport accessory sector, a competing quality norm, the SCS9000T, grounded in less demanding standards. In an entirely different area, that of accounting standards—strategic for finance and world economy—Europeans decided to endorse the IFRS norms, enacted by a private actor, the International Accounting Standards Board (IASB), and convinced other world powers to do so, in order to counter the dominance of American norms, seemingly with some success.⁴⁵

K. Technical standards vs legal rules¶

Beyond standards wars, norms bear much more resemblance to technical standards than to the legal rules, with which they compete and sometimes replace.⁴⁶ First, with regards to drafting, those norms are not made by a parliament according to the classic lawmaking process. Rather, they emerge from practical experience as a desirable average observed by experts, upon which stakeholders agree by consensus. Then, in contrast with classic legal sources, those norms are not imposed upon subjects under the threat of sanctions. On the contrary, they are norms to which actors subscribe voluntarily, although neither spontaneously nor selflessly, as we have seen. Regarding publicity, those norms are not rendered visible by a publication in an official journal, which would be necessary to make them enforceable. Instead, this is done by the granting of a ‘label’, which signals to others that an actor has committed himself to respecting such or such a norm. Maintaining this label requires the implementation of internal and external audit mechanisms, which take up the role played by administrative inspection services in domestic law. If the violation of those rules can result in legal proceedings (as we have seen with the Yahoo! and Nike examples) and sometimes in sanctions, those often give way to gradual improvement processes or, in irremediable cases, to the exclusion from the label and thus from the ‘club’, which functions according to a certain standard.

This comparison between global norms and technical standards should obviously be examined more thoroughly. However the few elements that we pointed out too rapidly show, in any case, that it would be of particular interest for lawyers to look into those technical norms. Indeed, those were considered for too long as ‘infra-droit’ while they should qualify as ‘contre-droit’, as Foucault wrote,⁴⁷ and they appear in the current context as a credible and sometimes effective alternative to traditional legal mechanisms.