Monday, July 09, 2007

Globalization Works in Strange Ways

Today I started teaching my summer school class for the University of Miami School of Law. My class is "Global Lawyering". The main argument of the course is that whereas we can talk of globalization from an economic perspective, it is actually quite hard to do it from a legal one. There isn't much international law, so the significant gaps have to be filled. They are mostly filled through a system of private ordering or governance that is manifested in transactions crafted by lawyers, primarily in large American and English law firms.

In bringing parties together in transactions, lawyers use law instrumentally. I've mentioned in papers of mine that New York state law and English law are the key choices in capital markets work. Moreover, when banks are lending for asset purchases they display a preference for the documentation to be based on one of these two to avoid irregularities caused by say French or Luxembourg law (eg. problems with "thin capitalization").

To make sense of all this, it's necessary to understand how the law firm came into being, why it has its present structure, how lawyers are educated, and more. My course puts this into the context of globalization. And that means globalization from above and below. Above is the large commercial/financial transaction like the Chad-Cameroon oil pipeline developed with World Bank participation. Below is the move by NGOs and popular movements to make drug companies reduce the prices of AIDS drugs in third world countries, such as South Africa.

So I am always looking for examples to illustrate different facets of globalization. I think the case of the dispossessed Dutch farmers against the government of Zimbabwe is a good one.

Tucked away on an inside page of the Financial Times is an article about dispossessed Dutch farmers taking a dispute against the Zimbabwean government to ICSID (International Centre for Settlement of Investment Disputes). (But see this version from Zimbabwe.) For more on the Zimbabwean dismantling of white farming, see Angus Selby's paper. The case was registered in 2005 (case #ARB/05/6). Fourteen farmers claim that
Mr Mugabe’s government breached its international law obligations by failing to provide adequate police protection for Dutch property owners in Zimbabwe between 2000 and 2002 and by actively supporting a series of violent land invasions that led to their farms being abandoned. They add that the Zimbabwean government subjected them to unlawful racial discrimination by targeting white farmers. (ft.com)
ICSID is an institution that grew out of the World Bank president's involvement in settling disputes on an ad hoc basis. The governor of the Bank of England has done the same. The legal basis of ICSID's dispute resolution process is found in a series of bilateral treaties as well as in investment contracts between investors and governments.

This case has brought together an interesting set of groups around the parties. On the claimants' side are the Dutch Farmers Association, Agric Africa (UK-based NGO run by a former land valuer in Zimbabwe), and George Soros' Open Society Initiative for Southern Africa. So far the respondent, the Zimbabwean government, appears to be on its own.

The Dutch farmers have brought together an international mix of lawyers based in Washington DC, London, and Harare. The Washington lawyers, Wiley Rein, are ICSID litigators; the English lawyers, Bishop & Sewell, do dispute resolution work and have strong African links; and the Zimbabwean lawyers are Coghlan, Welsh & Guest.

Despite Zimbabwe's reluctance to join in the government has appointed an arbitrator. It has selected the former Pakistan Justice minister Mohammad Wasi Zafar. The Dutch farmers have appointed Ronald Cass, a former dean of Boston University Law School. Judge Gilbert Guillaume of France is the third arbitrator. Moreover, Zimbabwe's plea to have their capital, Harare, as the venue because of exchange rate difficulties (ie. inflation at several thousand percent), has been rejected.

This case brings together the fundamental clash between north and south, aspects of colonialism, both British and Dutch, with memories of apartheid and subjugation. This is stark in the case of Zimbabwe and its legacy of Cecil Rhodes and Ian Smith and is assertion of an unilateral declaration of independence from British rule to maintain white hegemony. And it is layered with Robert Mugabe's desperate clinging to power at any cost through his suppression of any opposition and the expropriation of lands: the despotic leader averse to democracy. As Selby's paper above shows Zimbabwe had good, productive agriculture, but now it has famine. There is the involvement of sophisticated international agreements, bilateral treaties, governed by supranational bodies, ICSID. This represents the dominance of western law over more traditional forms. And NGOs--AgricAfrica and Soros' Open Society--are also implicated. All this to be dealt with by lawyers from three continents.

One single case thus encapsulates the conflicts, dilemmas and messiness of globalization.

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