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Free keywords:
distributed agency; globalization; institutional theory; law; professions; rule-setting; standardization
Abstract:
In institutional theory, it is a challenge to explain how rulesetting
occurs in transnational contexts with high rule ambiguity and
distributed agency. In this article, we address this problem by arguing that
emergent and deliberate institutional strategies, though often treated as
exclusive opposites, need to be considered in concert. This is demonstrated
by analysing transnational law-making in the context of commercial
and corporate law. Transnational law-making is thereby conceived as a
process driven by the practical problem-solving and sense-making efforts
of legal practitioners in large international law fi rms and international
legal associations. Focal actors can exploit the results of this process to
deliberately infl uence the development of law. A concept of two nested
cycles of incidental and strategic law-making is employed to explain how
dominant infl uences of common law become interwoven with infl uences
from multiple other legal traditions that eventually trickle up. This article
highlights the role of professionals as practice-based experts engaging in
practical and political actions, the effects of which shape transnational
rule-setting.
