The European Journal of International Law Vol. 35 no. 1 EJIL (2024), Vol. 35 No.

1, 93–139
https://doi.org/10.1093/ejil/chae011 © The Author(s) 2024. Published by Oxford University
Press on behalf of EJIL Ltd. This is an Open Access article distributed under the terms of the
Creative Commons Attribution License (https://creativecommons.org/licenses/by/4.0/),
which permits unrestricted reuse, distribution, and reproduction in any medium, provided
the original work is properly cited. ‘Global Disordering’: Practices of Reflexivity in Global
Economic Governance Andrew Lang* Abstract In this article, I offer a reinterpretation of late
20th-century ‘neo-liberal’ transformations of global economic governance. My
argumentative foil is a macro-institutional interpretation of the post-1980s period in which
neo-liberalism appears as programmatic institutional form and disciplinary formation. I
argue that a second, and complementary, dynamic also needs to be taken into account –
namely, the emergence and operationalization of a set of critical technologies for
embedding practices of reflexivity within the state. I suggest, moreover, that attention to
this dimension of neo-liberalization provides a new perspective on the present. I offer an
interpretation of the current moment of transition as one in which a similar repertoire of
neo-liberal techniques of reflexivization is, in a second iteration, being trained on the
architecture of global economic governance itself. 1 Introduction Are we, as former United
Kingdom Prime Minister Gordon Brown has recently suggested, on the cusp of a
‘post-neoliberal’ future for the global economic order?1 The idea is certainly in the air: one
does not have to look far to find invocations of ‘postneoliberal globalization’, the ‘fall’ of the
neo-liberal order, a world ‘after neoliberalism’ or the ‘emergence of a post-neoliberal
order’.2 The heart of such claims is that a combination of recent epochal events – the
COVID-19 pandemic, climate change, the rise * Chair in International Law and Global
Governance, University of Edinburgh, United Kingdom. Email: Andrew.Lang@ed.ac.uk. This
article has been immeasurably improved by generous and productive conversations with
colleagues too numerous to mention, at the University of Edinburgh and beyond. 1
Presidential Lecture at the World Trade Organization (WTO) Public Forum, 12 September
2023. 2 G. Gerstle, The Rise and Fall of the Neoliberal Order: America and the World in the
Free Market Era (2022); J.E. Stiglitz, ‘A New Global Order: Professor Joseph Stiglitz on
Post-neoliberal Globalisation’, Speech delivered at the European University Institute, 28
September 2023; Foroohar, ‘After Neoliberalism – All Economic Is Local’, 101(6) Foreign
Affairs (2022) 134; Davies and Gane, ‘Post-Neoliberalism: An Introduction’, 38(6) Theory,
Culture and Society (2021) 3. Downloaded from
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35 (2024), 93–139 Articles of anti-liberal populisms, major new geopolitical tensions, the
digital revolution, all coming not long after the global financial crisis – have ‘shattered past
orthodoxies on the desirable models of international economic integration, and the
institutional arrangements underpinning them’.3 While this is hardly the first time the death
of neoliberalism has been announced, it is hard to deny that we are at an inflection point as
significant as that which occurred around the end of the Cold War. In this article, I suggest
that, in order to think clearly about the present ‘post-neoliberal’ moment – if that is indeed
what it is – international lawyers need first to take another look at global economic
governance during the neo-liberal period itself and complicate some of our assumptions
about it. My argumentative foil is what I shall call a ‘macro-institutional’ interpretation of
global economic governance during the last decades of the 20th century. According to this
interpretation, the last decades of the long 20th century were a time during which a
particular institutional form of the state – described as neo-liberal, characterized in
shorthand as ‘pro-market’ and associated with the collection of policy priorities that we
know as the Washington Consensus – was promoted and propagated through a variety of
international economic institutions, with transformational consequences both for the nature
of global economic governance and for state formations across the globe. In this story,
‘neo-liberalism’ appears primarily as programmatic institutional form, and global economic
governance appears primarily as a coercive formation promoting alignment with this
institutional form. This foil is admittedly something of a simplification, but I would suggest
that it remains a central reference point for international (economic) lawyers’ understanding
of this period. Importantly, by saying that this is a ‘central reference point’ for international
lawyers, I mean that this macro-institutional view has deeply structured the conversations
that we have about global economic governance. We routinely ask, for example, how far
international trade and investment law constrain the regulatory autonomy of states and
how far they discipline deviation from free-market principles. We have extensively
examined the ways in which international financial institutions have promulgated the
Washington Consensus through loan conditionalities as well as the extent to which their
subsequent good governance agenda has encoded market-orientated policy preferences.
We discuss and debate the extent to which international regulatory organizations have
been successful in promoting convergence around expertdefined best practice regulation in
this or that field of economic regulation. More generally, our debates about the neo-liberal
period very often take the form of conversations about whether and to what extent this
‘macro-institutional’ story is true and how it should be qualified, modified or corrected. It is
true, of course, that there is more to our conversation than this; there is, for example, an
important strand of critical international legal scholarship that complicates our
understanding of neoliberalism in hugely productive ways and with which my account
shares a great deal, 3 ‘Global Governance and the Emergence of a Post-neoliberal Order?’,
Socio-Economic Review, available at
https://sase.org/global-governance-and-the-emergence-of-a-post-neoliberal-order/.
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October 2024 ‘Global Disordering’ 95 even if my focus is different.4 But I do maintain that
the macro-institutional view still shapes much of the background common sense that we
bring to these conversations. My claim is not that the macro-institutional interpretation is
wrong, but I do suggest that it is incomplete. I suggest that we should understand
neo-liberal global economic governance as being constituted by two related but distinct
dynamics. On the one hand, it does indeed involve the propagation of particular
programmatic forms of the neo-liberal state, albeit forms that are only indistinctly defined
and subject to almost constant change. But, on the other hand, it also involves the
deployment and operationalization of a set of critical technologies for embedding practices
of ‘reflexivity’ within the state. ‘Reflexivity’ is used here to connote a particular style, ethos
and practice of governing that seeks to routinize critical self-reflection in decision-making
systems; valorizes flexibility, adaptation and innovation as key attributes of adequate
governance systems; and encourages continuous improvement through varied techniques
of measurement, peer evaluation, iterative review and revision. It is, roughly speaking, the
analogue at the state level of the ethic of competitive, self-improving and reflexive
entrepreneurialism that is characteristic of neo-liberal individual subjectivity. It is not a
single or an invariant ‘thing’ but, rather, a style that is only ever manifested contingently
and locally. Thus, global economic governance became, from the 1980s onwards, a stage
for the pursuit of a variety of different projects of reflexivization: subjecting the state to new
structures of competition and new techniques of expert evaluation and ranking; disciplining
regulatory decision-making through routinized protocols of rationalsceptical review and
embedding it within fields of reflexive technical expertise;5 and consolidating audit and
performance management as central techniques of public administration. Here,
neo-liberalism appears less as a programmatic ideological formation designed to promote
markets as a solution to the problem of value and more as a set of techniques for displacing
the question of social value from the practice of statecraft altogether. Following others, I
describe the work of this second (reflexivizing) dynamic as the work of disenchantment or
the ‘desacralization’ of the social state. From around the 1980s, then, I argue that global
economic governance came to be a set of spaces in which two kinds of work were done on
the post-war social state: the programmatic work of market-oriented re-institutionalization
and the critical work of reflexivization. In some respects, these two dynamics were
complementary, but, in others, they pushed in different directions: one promoting
institutional alignment, the other encouraging institutional experimentation and change. As
a consequence, neo-liberal global economic governance helped to produce and propagate
globally the regulatory state as a highly heterogenous institutional form. Neo-liberalization,
to borrow Neil Brenner, Jamie Peck and Nik Theodore’s formulation, produced a ‘tendential,
discontinuous, uneven, conflictual and contradictory reconstitution of 4 See note 18. 5 For a
leading account of such reflexive expertise within international law, see D.W. Kennedy, A
World of Struggle: How Power, Law and Expertise Shape Global Political Economy (2018).
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October 2024 96 EJIL 35 (2024), 93–139 Articles state-economy relations’, which
‘intensif[ied] the uneven development of regulatory forms across places, territories and
scales’ rather than reduced it.6 This account of neo-liberalization, I suggest, can provide us
with a new perspective on the present. The claim that we are in the early stages of a
‘post-neo-liberal’ global economic order is typically articulated in institutional terms – in
short, it is the claim that the market-oriented neo-liberal policy paradigm, discredited since
at least the global financial crisis and probably well before, is finally giving way to new
institutional models and policy programmes. I argue that, at the same time, it can also be
productively understood by reference to the dynamic of reflexivization. I suggest, first, that
these new institutional models are also evidence of the success and power of reflexive
neo-liberal technologies of government in constituting the regulatory state as a dynamic
and self-reinventing institutional form. And, second, I offer a complementary interpretation
of the current moment as one in which a reconfigured repertoire of techniques of
reflexivization is, in a second iteration, being trained on the architecture of global economic
governance itself. Two important clarifications are necessary.7 First, there is a risk that an
argument of this kind is perceived as an attempt to rehabilitate neo-liberalism – after all,
reflexivity and its associated aspirations to learning, adaptation, experimentation and
evidence-based scepticism have a positive valence. To be clear, then, I take the reflexivizing
dynamics of neo-liberalization seriously but not necessarily at face value. This means that,
on the one hand, I believe that the work of reflexivization needs to be analysed on its own
terms, not merely as a cover for, or as part of, the programmatic work of market-promoting
institutionalization. But, on the other, I also take it as given that reflexive practices are
always situated within, and bound up with, structures of power, mechanisms of domination
and patterns of inequality in ways that demand further investigation. One aim of this article
is to help lay the groundwork for precisely such investigation. Second, this is an argument
about the character and dynamics of neoliberal global economic governance, not an account
of how it came to be, who made it so, why and to what ends. This is not because I eschew
actor-centred explanation – in fact, it is precisely the opposite. The account I offer here
posits neo-liberalization not as disembodied force or policy programme but, rather, as a
particular set of governance technologies that are deployed by specific actors for specific
purposes in specific contexts. It is implicit in the argument of this article that the stories of
such deployments can only be told contextually. While I offer illustrations of a number of
such stories throughout the article, my main aim is simply to provide a framework for future
explanatory accounts, in which actors and their varied and evolving interests can
appropriately take centre stage in place of ‘neo-liberalism’ as a determining,
macrostructural force. The argument proceeds in three main moves. In section 2, I introduce
three available interpretations of neo-liberal global economic governance by way of a
reading 6 Brenner, Peck and Theodore, ‘Variegated Neoliberalization: Geographies,
Modalities, Pathways’, 10(2) Global Networks (GN) (2010) 182, at 184 (emphasis in
original). 7 My thanks to anonymous reviewers for drawing attention to the need for both of
these clarifications. Downloaded from
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Disordering’ 97 of an important debate within the discipline of social anthropology about a
decade ago. It is the third of these interpretations that I find most promising for
international (economic) lawyers, and, in many ways, this section can be understood as an
attempt to make key elements of this third interpretation available in a new way to an
international legal audience. In section 3, I draw on this literature to redescribe the
post-1980s transformation of global economic governance as a period during which
specifically neo-liberal technologies of government were internationalized – that is to say,
made available and deployed at the international level, through a variety of existing and
new spaces of global economic governance – in diverse projects of state reform, oriented
around the contestation of an inherited institutional landscape. My aim in this section is to
show how those institutions of global economic governance that are commonly analysed as
technologies of institutional constraint, coercion and convergence can be productively
reinterpreted as instruments of reflexivization. Section 4 then offers reflections on the
implications of this redescription in regard to our understanding of contemporary
transformations. 2 Neo-liberalism Three Ways If we understand neo-liberalism as a
package of market-oriented policies and institutional reforms, how do we explain the
heterogeneity of neo-liberal state forms produced over the last three decades? This is an
impossibly large question, but a useful entry point into it is through a debate between
Stephen Collier, Mathieu Hilgers, Jamie Peck, Nik Theodore and Loïc Wacquant in the pages
of Social Anthropology in 2012.8 In fact, this debate was directly concerned with a
somewhat different task – namely, differentiating distinct anthropological approaches to the
study of neo-liberalism and clarifying the stakes of the choice between them. But, in the
course of doing so, the participants had rather a lot to say about the institutional
heterogeneity of the neoliberal state. From the standpoint of their conversation, there
emerge three broad explanatory approaches: structural approaches (discussed by
Wacquant), the approach of variegation (discussed by Peck and Theodore) and
governmentality approaches (discussed by Collier). In this section, I outline each, with a
view to demonstrating why the third seems to me to deserve renewed attention amongst
international lawyers. 8 Hilgers, ‘The Historicity of the Neoliberal State’, 20(2) Social
Anthropology (SA) (2012) 80; Wacquant, ‘Three Steps to a Historical Anthropology of
Actually Existing Neoliberalism’, 20(2) SA (2012) 66; Peck and Theodore, ‘Reanimating
Neoliberalism: Process Geographies of Neoliberalisation’, 20(2) SA (2012) 177; Collier,
‘Neoliberalism as Big Leviathan, or … ? A Response to Wacquant and Hilgers’, 20(2) SA
(2012) 186. The following discussion also draws on the earlier work of these scholars as
well as other scholars in the conversation, including Hilgers, ‘The Three Anthropological
Approaches to Neoliberalism’, 61 International Social Science Journal (2011) 351; L.
Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (2009);
Brenner, Peck and Theodore, ‘Variegated Neoliberalization: Geographies, Modalities,
Pathways’, 10(2) GN (2010) 182; S.J. Collier and A. Ong, Global Assemblages: Technology,
Politics, and Ethics as Anthropological Problems (2005); S.J. Collier, ‘Second Thoughts on
“The Death of the Social?” Neoliberalism as Critique’ (2014), available at
https://stephenjcollier.files.wordpress.com/2014/05/neoliberalism-as-critique.pdf; Collier,
‘Neoliberalism and Rule by Experts’, in W. Larner and V. Higgins (eds), Assembling
Neoliberalism (2017) 23. Downloaded from
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35 (2024), 93–139 Articles Structural approaches do not begin as explanations of
institutional variation at all but, rather, the opposite: they are, in fact, theories of the
‘institutional core’ of neoliberalism.9 While Wacquant’s conceptualization of neo-liberal
punitive penality is the exemplar of such approaches in the debate referenced above, there
are many kinds of structural explanations. In most of them, neo-liberalism is understood as
a market rule, a political ideology and social formation organized around the idea of the
self-regulating market, which sets in train projects of marketization and commodification by
way of a retrenchment and reconfiguration of the state. In programmatic terms, it is
associated most commonly with the policy prescriptions associated with the Washington
Consensus: fiscal constraint, trade liberalization, privatization, deregulation, floating
exchange rates and so on. Neo-liberalism, in this telling, is above all a disciplinary regime
that imposes a set of constraints on states as a means of securing the rights of capital,
promoting free trade and establishing the conditions for free markets. This disciplinary
regime takes shape in significant part at the international level, through the workings of
global financial markets, structural adjustment programmes of international financial
institutions, the legal constraints imposed on states by bodies such as the World Trade
Organization (WTO) and so on. The touchstone of structural approaches is simply that they
see neo-liberalism as a macrostructure, and explanation proceeds in the first instance
through an identification of its core (often institutional or policy) characteristics. Even if
structural approaches do not begin as explanations of institutional heterogeneity, they do
not ignore it. Most, if not all, such accounts explicitly acknowledge the fact that neo-liberal
projects take very different forms in different places. To simplify only slightly, what is
common to structural accounts is that variation is understood fundamentally as a function
of local context – that is to say, it is explained by forces and dynamics at work wherever and
whenever neo-liberal projects are implemented or operationalized. This claim has
numerous variations. Neo-liberal projects of marketization, for example, are observed to
generate and encounter resistance of various kinds in different spaces, such that the precise
form they take reflects the form and strength of that resistance. They can open up new
spaces of political mobilization, which are available to be used opportunistically by local
actors. If neo-liberalism essentially consists in the protection of the rights of capital, the
exact political priorities of capital may vary from place to place. Neoliberalism may achieve
different degrees of penetration in different countries, depending on their levels of
vulnerability to external pressure or the presence of countervailing pressures.
Neo-liberalism looks different in different places depending on the position that various
states occupy in the global structure of economic relations and so on. A number of powerful
accounts of late 20th-century global economic governance are structural accounts of this
type. I would include in this category, for example, Stephen Gill’s account of the ‘new
constitutionalism’;10 David Harvey’s foundational work on 9 Wacquant, supra note 8, at 71,
especially n. 5. 10 Gill, ‘New Constitutionalism, Democratisation and Global Political
Economy’, 10 Pacifica Review (1998) 23; Gill, ‘Globalisation, Market Civilisation and
Disciplinary Neoliberalism’, 24 Millennium (1995) 399; Gill, ‘The Constitution of Global
Capitalism’ (2000), available at https://ciaotest.cc.columbia.edu/isa/ Downloaded from
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Disordering’ 99 neo-liberalism as a class project;11 Quinn Slobodian’s conceptualization of
the General Agreement on Tariffs and Trade (GATT) / WTO as pursuing a project of
‘encasement’ of the free market against democratic control;12 David Held’s analysis of the
promulgation of the Washington Consensus,13 among many others. Although these
authors are not lawyers, their accounts do contain important claims about the law. The
most important of these, for our purposes, is the key idea that international economic law
has ‘functioned to embed and transmit ideas about the proper relation between state and
market’14 and has been used as a mechanism for powerful (Western) states to restructure
state formations globally in their own idealized, market-oriented image. As many
international lawyers understand well, this idea about international law has certain
weaknesses. For one thing, it overstates the restrictive content of international economic
law, which is much more ambiguous and qualified in the disciplines it imposes than this
account acknowledges. It also overstates the effectiveness in practice of international
economic law as a general constraint on state action. This is a problem not just in the
interests of accuracy but also because obscuring the contestability and ambiguity of
international economic law is itself an ideologically charged act with performative
effects.15 For another thing, it leaves many core features of the international legal
landscape inadequately explained. How, for example, do we account for the fact that key
institutions of international economic law are in fact pluralist in regard to market structure,
both aspirationally and, to a significant extent, in practice?16 How do we account for the
fact that the range of policy options available to states within this system apparently
changes over time, even where the ‘law’ itself does not? What, more generally, are we to
do with the fact that key aspects of ‘neo-liberal’ policy programmes – even such
fundamental matters as the central distinction between ‘market-enabling’ and
‘market-interfering’ regulations – remain indeterminate or, at least, constantly unsettled and
in play? It is in part on account of these considerations that some international economic
lawyers engaging most directly with this tradition have developed more complex gis01/.
According to Neil Brenner, Jamie Peck and Nik Theodore, ‘the new constitutionalism entails
not only a rolling back of progressive-constitutionalist restrictions on capitalist property
rights, but the rolling forward of a new international juridical framework that systematically
privileges the discretionary rights of capital on a world scale. This entails the construction
of supranational institutional forms and the reconfiguration of existing state apparatuses in
ways that "lock in" the market-disciplinary agendas of globalized neoliberalism’. Brenner,
Peck and Theodore, supra note 8, at 193. 11 D. Harvey, A Brief History of Neoliberalism
(2005); see also Duménil and Lévy ‘Costs and Benefits of Neoliberalism: A Class Analysis’,
8 Review of International Political Economy (RIPE) (2001) 578. 12 Q. Slobodian, Globalists:
The End of Empire and the Birth of Neoliberalism (2018); General Agreement on Tariffs and
Trade 1994 (GATT), 55 UNTS 194. 13 D. Held, Global Covenant: The Social Democratic
Alternative to the Washington Consensus (2004). 14 I take this helpful formulation from
Orford, ‘How to Think about the Battle for the State in the WTO’, 24 German Law Journal
(2023) 45, at 66. 15 Orford, supra note 14, at 60; Lang, ‘Beyond Formal Obligations: The
Trade Regime and the Making of Political Priorities’, 18(3) Leiden Journal of International
Law (2005) 403. 16 For one recent intervention of this sort, see Howse and Langille,
‘Continuity and Change in the World Trade Organization: Pluralism Past, Present, and
Future’, 117(1) American Journal of International Law (AJIL) (2023) 1. Downloaded from
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EJIL 35 (2024), 93–139 Articles accounts of neo-liberalism and its relation to law. I have,
for example, separately described the way in which international economic law ‘normalizes’
particular state forms rather than more simply formally requiring adherence to them.17
More generally, others have developed accounts of neo-liberal legality that foreground not
only the fact of legal indeterminacy but also its functionality, as well as taking seriously the
ambiguity and plurality of neo-liberal thought and situating law as only one element of
much larger heterogenous assemblages of neo-liberal governance.18 The account I offer
here overlaps with those in many ways, but its focus is different because it has been
developed as a response to a different and additional weakness of the macroinstitutional
approach, which has received less attention in the existing international legal literature. In
his contribution to the above debate, Stephen Collier notes that macrostructural ways of
explaining variation come at a cost.19 By locating the source of variation at the ‘local’ level,
these accounts contribute to a flattening and simplification of our understanding of the
workings of neo-liberalism in and through international spaces. At the international level,
neo-liberalism still appears to be a more or less unidirectional force, and structures of
global economic governance are still conceived of as more or less powerful inhibitors of the
productive powers of local political contestation. International institutions are imagined
largely as a transmission belt for neoliberal ideas, programmes and policies – whatever
their form – while the productive work of reconstitution, creolization, adaptation,
combination and recalibration is imagined to occur primarily at the national or local level.
Accordingly, structural approaches offer very few conceptual resources for thinking clearly
about the ways in which institutions and processes of global economic governance may
actively and endogenously produce heterogenous institutional forms at the level of the
state. And they offer very few resources for thinking about the internal inconsistency,
multiplicity and variability observable within even the most ‘neo-liberal’ international
spaces. This weakness, I would argue, is mirrored in many mainstream international legal
conversations about the sort of work global economic governance does and how it does it.
A rather huge amount of international legal scholarship has been focused on the specific
levers of constraint and discipline that international economic institutions 17 Orford, supra
note 14; Orford, ‘Theorizing Free Trade’, in A. Orford and F. Hoffmann (eds), The Oxford
Handbook of the Theory of International Law (2016) 701; Orford, ‘Locating the
International: Military and Monetary Interventions after the Cold War’, 38 Harvard
International Law Journal (HILJ) (1997) 443; Orford, ‘Food Security, Free Trade, and the
Battle for the State’, 11 Journal of International Law and International Relations (2015) 1;
Lang, supra note 15; see also generally Tarullo, ‘Logic, Myth and the International Economic
Order’, 26 HILJ (1985) 533; Tarullo, ‘Beyond Normalcy in the Regulation of International
Trade’, 100 Harvard Law Review (1987) 546. 18 In regard to literature that addresses
global economic governance in particular, see, e.g., H. Brabazon (ed.), Neoliberal Legality:
Understanding the Role of Law in the Neoliberal Project (2017), especially the
contributions by Brabazon, Krever, Perrone and Palacios Lleras; B. Golder and D.
McLoughlin (eds), The Politics of Legality in an Neoliberal Age (2017), especially the
chapters by Tzouvala, Manfredi, Biebricher; Johns, ‘On Failing Forward: Neoliberal Legality
in the Mekong River Basin, 48(2) Cornell International Law Journal (CILJ) (2015) 347. 19
Collier, ‘Neoliberalism as Big Leviathan, or … ? A Response to Wacquant and Hilgers’, 20(2)
SA (2012) 186, at 192. Downloaded from
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Disordering’ 101 have at their disposal to constrain state action and limit the range of
institutional possibilities open to states. Accordingly, we repeatedly and rigorously debate
the degrees of freedom, flexibility or autonomy that international economic law leaves to
states to shape markets according to their wishes. But we have no clear ways of even
asking the question of how international legal practices might themselves facilitate this
kind of market here and that kind there. The possibility that international economic law
might be – endogenously and even by design – productive of heterogeneity and
contestation at the level of state form is rarely given sustained attention. The framework of
‘variegated neo-liberalism’, advanced most prominently by Brenner, Peck and Theodore,
offers one way out of these difficulties.20 These authors seek to build a theory that places
regulatory differentiation at the heart of neo-liberalization – as ‘intensified’ by it and
constitutive of it – rather than viewing such differentiation as the result of ‘interruptions,
diversions, exceptions or impediments’ to it.21 As already signalled in their analytical and
terminological shift from ‘neo-liberalism’ (a thing) to ‘neo-liberalization’ (a process), they
reject the idea that an essential ‘institutional core’ of neo-liberalism can readily be
ascertained.22 This is true not just at the level of political practice but also at the ideational
level: these authors (especially Peck) are careful to describe the intellectual origins of
neo-liberalism as internally diverse, eclectic and even contradictory.23 Neo-liberal thought,
for them, is an ‘intellectually hybrid and unevenly developed ideological form’.24 For them,
the most that can be said in substantive terms is that processes of neo-liberalization have
tendential dynamics and that they unfold within ‘strategic targets’ and ‘strategic priorities’,
defined in part by the ‘ideational coordinates of neoliberalism’.25 Accordingly, for these
authors, processes of neo-liberalization are necessarily productive of institutional variation
as a result of at least four related dynamics. First, as they observe, early projects of
neo-liberalization arose as a response to inherited institutional landscapes, which were
themselves highly differentiated. Thus, the specific ‘vulnerabilities and crisis points’ of the
social state, itself a globally differentiated form, helped to ‘establish[] the founding
rationales, ideological targets, fields of opportunity, and spaces of realization for the first
rounds of neoliberalization’.26 Second, neo-liberalization proceeds iteratively and
experimentally, often in response to its own prior failures. ‘Market rule’, these authors
argue, is ‘less concerned with the imposition of a singular regulatory template, and much
more about learning by doing (and 20 The primary reference is Brenner, Peck and
Theodore, supra note 8, but see also Peck and Theodore, supra note 8; Peck and Theodore,
‘Variegated Capitalism’, 31(6) Progress in Human Geography (2007) 731; Brenner and
Theodore, ‘Cities and the Geographies of “Actually Existing Neoliberalism”’, 34(3) Antipode
(2002) 349; Peck and Tickell, ‘Neoliberalizing Space’, 34(3) Antipode (2002) 380; see also
Jessop, ‘Rethinking the Diversity and Varieties of Capitalism: On Variegated Capitalism in
the World Market’, in G. Wood and C. Lane (eds), Capitalist Diversity and Diversity within
Capitalism (2011) 209. 21 Brenner, Peck and Theodore, supra note 8, at 188, 207, 210. 22
Peck and Theodore, supra note 8, at 183. 23 See, e.g., Peck ‘Remaking Laissez Faire’, 32(1)
Progress in Human Geography (2008) 3. 24 Brenner, Peck and Theodore, supra note 8, at
213. 25 Ibid., at 210. 26 Ibid., at 211, 213. Downloaded from
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EJIL 35 (2024), 93–139 Articles failing) within an evolving framework of market-oriented
reform parameters and strategic objectives’. It proceeds by way of ‘crisis-riven and often
profoundly dysfunctional rounds of regulatory restructuring’, through which ‘the ideological
creed, regulatory practices, political mechanisms and institutional geographies of
neo-liberalization have been repeatedly reconstituted and remade’.27 Third, and as a
consequence, neoliberalization is associated with ‘unpredictable layering effects’ as ‘the
sedimented imprint of earlier policy regimes seldom completely disappears’, such that
iterative rounds of market-oriented regulatory reform produce hybridized and idiosyncratic
institutional formations.28 Fourth and finally, even if neo-liberalization can be said to have
certain characteristic market-oriented tendencies and trajectories, ‘the neoliberal playbook
provides no guidance whatsoever on where to draw the line on those rolling programmes
of marketisation, commodification and privatisation that its utopian rhetoric inspires’.29 It
follows that its (constitutive) boundaries always and inevitably remain to be defined, again
and again, in its spaces of operationalization. As I have said elsewhere,30 there is a huge
amount in this framework that I find attractive and that is of direct relevance for
international lawyers. Indeed, some of the most compelling accounts of neo-liberal global
economic governance that I know of in international legal scholarship seem to me to share
much with it. But, in the context of this article, I want to draw specific attention to the next
move in Brenner, Peck and Theodore’s argument, in which they posit that neo-liberalization
has proceeded broadly in two phases. The first, formative phase of neo-liberalization
(‘disarticulated neo-liberalization’), which occurred primarily over the 1980s, was
‘characterized by a proliferation of relatively unconnected, conjunctural and contextually
bound projects of market-oriented institutional creative destruction’.31 But, in its second
phase (‘deep neo-liberalization’), which has occurred from the 1990s onwards, these
projects ‘have increasingly been embedded within transnationally interconnected, rolling
programmes of market-driven reform that draw upon shared ideological vocabularies,
policy repertoires and institutional mechanisms derived from earlier rounds of
market-driven regulatory experimentation and cross-jurisdictional policy transfer’.32 In this
second phase, neo-liberalization is characterized by the emergence of ‘geoinstitutional rule
regimes’ that ‘govern’ and ‘reshape[] the … parameters for processes of regulatory
experimentation’.33 A central consequence of neo-liberalization, they argue, ‘has been to
subject otherwise diverse forms of (localized and national) regulatory experimentation to
certain common, underlying parameters of marketization and commodification’.34 27 Ibid.,
at 216, 210; see also J. Peck, Constructions of Neoliberal Reason (2010) (on neoliberalism’s
dynamic of ‘failing forward’). 28 Ibid., at 189. 29 Peck and Theodore, supra note 8, at 179.
30 See Lang, ‘Heterodox Markets and “Market Distortions” in the Global Trading System’,
22(4) Journal of International Economic Law (JIEL) (2019) 677. 31 Brenner, Peck and
Theodore, supra note 8, at 213–214. 32 Ibid., at 209. 33 Ibid., at 185, 215. 34 Ibid., at 219.
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October 2024 ‘Global Disordering’ 103 Here, then, Brenner, Peck and Theodore bring us to
the central question for international lawyers and the question that animates this article.
How do late 20th-century transformations in global economic governance relate to the
tremendous array of projects of state re-constitution and re-configuration that we have
seen since then? But it is precisely here that their otherwise rich conceptual structure offers
little. We meet, more or less, the same flattened and simplified version of the relation
between neoliberalization and global economic governance in the post-Cold War period
that we saw earlier: [A] variety of global and multilateral regulatory institutions – the WTO,
the IMF [International Monetary Fund], the World Bank and the post-Maastricht EU
[European Union], for example – were mobilized during the 1990s to ‘lock in’ mechanisms
of market rule, to enhance capital mobility and thus to extend commodification. In these and
other ways, coercive and competitive forms of policy transfer became mutually entwined,
remaking not only ‘local’ regulatory formations but the ‘rules of the game’ within which
they were (and arguably continue to be) recursively embedded. Under these circumstances,
the dull compulsion of neoliberal regime competition – reinforced by hierarchical pressures
from multilateral institutions and strong states, and lubricated by the sprawling epistemic
communities of experts, practitioners and advocates – served to canalize and incentivize
regulatory restructuring strategies along broadly market-oriented, commodifying
pathways.35 This is not to say that neo-liberalization, in this account, suddenly becomes
again an agent of institutional convergence – we are reminded, after all, that ‘the regulatory
isomorphism entailed by this deep(ening) formation of neoliberalization has been
necessarily truncated’ by the dynamics described above. But it remains the case that, for all
its other benefits, there is little in this account that helps us to think about the ways in
which global economic governance may be a space for the active production of diverse
institutional formations rather than an exogenous limit to it. Regulatory experimentation,
again, is imagined as a product of local context, while the international is imagined as a
space of ‘macrospatial rules, parameters and mechanisms’ that ‘channel, circumscribe and
pattern’ such experimentation.36 To get around this problem, we need to turn to a third set
of approaches, which are referred to as ‘governmentality’ approaches in the Social
Anthropology debate. ‘Governmentality’ is evidently a familiar frame for many international
lawyers, but the specific use to which that notion is put here, and the particular focus of
analysis, differs somewhat from most international lawyers who work within this
framework.37 The work I am interested in here begins, naturally enough, with Michel
Foucault, runs through the work of the ‘Anglo-Foucauldians’ during the 1980s and 1990s,
including scholars such as Nikolas Rose, Peter Miller, Colin Gordon and Michael Power,
among others,38 and then is represented in the 2012 Social Anthropology debate most 35
Ibid., at 215 (references omitted). 36 Ibid., at 201. 37 See note 57 below. 38 See, e.g., Rose,
O’Malley and Valverde, ‘Governmentality’, 2 Annual Review of Law and Social Science
(2006) 83; M. Power, The Audit Society: Rituals of Verification (1997); Rose and Miller,
‘Political Power beyond the State: Problematics of Government’, 43 British Journal of
Sociology (1992) 173; Rose, ‘Governing “Advanced” Liberal Democracies’, in A. Barry, T.
Osborne and N. Rose (eds), Foucault and Political Reason: Liberalism, Downloaded from
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EJIL 35 (2024), 93–139 Articles prominently in the work of Stephen Collier and Aihwa Ong
as well as William Davies and Wendy Larner.39 One of the contentions of this article is
that this tradition provides international lawyers with a particularly productive set of
conceptual tools for thinking about the transformations of global economic governance in
the late 20th century – tools that, crucially, help us to avoid some of the difficulties
described above. For present purposes, the most relevant point of entry into this tradition is
the account of ‘advanced liberalism’ that Rose (and his co-authors) developed over the
course of the 1990s.40 In this account, familiarly enough, advanced liberalism emerged
over the second half of the 20th century in critical reaction to the social (welfare) state.
Importantly, however, the figure of the ‘social state’ evokes, for Rose, much more than just
an institutional form or a political programme. It is associated with a particular problematic
of rule – that is to say, a particular way of answering the foundational questions of who
should govern what, in pursuit of what goals, using what ends and with what justification.
In this problematic of rule, in Rose’s famous articulation, ‘the social, as a plane of thought
and action … [was] a key zone, target and objective’ of statecraft.41 The nation was to be
governed in the interests of the social body. Political forces ‘would now articulate their
demand upon the State in the name of the social’.42 And the social body itself was made
amenable to measurement, analysis and intervention through the emergence of ‘social
statistics, sociology and all the social sciences’, alongside new domains of technical
expertise on which practices of statecraft heavily relied.43 Statecraft in the social
imaginary, one might summarize, involved the constitution, discernment and expression of
social value. Although in this modality of government, the ‘economic’ and ‘social’ domains
were imagined as distinct, nevertheless they were ‘governed according to a principle of joint
optimization’.44 On the one hand, the economy was governed in the name of
Neo-Liberalism and Rationalities of Government (1996) 37; Rose, ‘The Death of the Social?
Refiguring the Territory of Government’, 25 Economy and Society (1996) 327; Rose,
‘Government, Authority and Expertise in Advanced Liberalism’, 22(3) Economy and Society
(1993) 283; Miller and Rose, ‘Governing Economic Life’, 19 Economy and Society (1990) 1;
N. Rose and P. Miller (eds), Governing the Present: Administering Economic, Social and
Personal Life (2008); Miller, ‘On the Interrelations between Accounting and the State’, 15
Accounting, Organizations and Society (1990) 315; G. Burchell, C. Gordon and P. Miller, The
Foucault Effect: Studies in Governmentality: With Two Lectures by and an Interview with
Michael Foucault (1991); Rose, ‘Calculable Minds and Manageable Individuals’, 1 History of
the Human Sciences (1988) 179; M. Dean, Governmentality: Power and Rule in Modern
Society (2nd edn, 2010). 39 See select references to Stephen Collier’s work in note 8
above; A. Ong, Neoliberalism as Exception: Mutations in Citizenship and Sovereignty
(2006); Ong, ‘Neoliberalism as a Mobile Technology’, 32 Transactions of the Institute of
British Geographers (2007) 3; W. Davies, The Limits of Neoliberalism: Authority,
Sovereignty and the Logic of Competition (rev. edn, 2017); Larner, ‘Neo-liberalism: Policy,
Ideology, Governmentality’, 63 Studies in Political Economy (2000) 5; Larner,
‘Neoliberalism?’, 21 Environment and Planning D: Society and Space (2003) 509; Larner,
‘Neoliberalism, Mike Moore, and the WTO’, 41(7) Environment and Planning A: Economy
and Space (2009) 1576; see also Ferguson, ‘The Uses of Neoliberalism’, 41(1) Antipode
(2009) 166. 40 See especially Rose, ‘Government’, supra note 38; Rose, ‘Death of the
Social’, supra note 38; Rose and Miller, ‘Political Power’, supra note 38; Miller and Rose,
‘Governing Economic Life’, supra note 38. 41 Rose, ‘Death of the Social’, supra note 38, at
327. 42 Ibid., at 329 (italics removed). 43 Ibid. 44 Ibid., at 338. Downloaded from
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Disordering’ 105 the social, in support of the overall health of the social body. Thus, the
social state was actively involved in the management of labour relations as a means of
ensuring social peace, developed new macroeconomic techniques of demand management
to smooth out the business cycle, established key integrative and solidaristic institutions of
social protection and social insurance and developed regimes of health and safety
regulation to protect the social body against the undesirable consequences of industrial life.
On the other hand, and at the same time, the social was governed in the name of the
national economy: ‘[T]he production of a labour market itself became part of the
responsibilities of economic government, and a range of interventions into the social would
maximise the economic efficiency of the population.’45 These interventions included
vocational guidance, and rules around child care, social work and, indeed, institutions of
social insurance themselves. ‘Advanced liberalism’ – and, for the purposes of my argument,
this term can be understood as being synonymous with ‘neo-liberalism’ – takes shape as a
way of expressing deep scepticism about this way of doing statecraft and imagining
politics. One common target of criticism was the rigid and inflexible bureaucratic structure
of the social state, which imposed considerable economic costs and resulted in significant
social injustices. Neo-liberalism emerges, in Collier’s words, as in part ‘a style and practice
of thinking that aims, in part, to point out the inefficiencies, inequities, and irrationalities of
the social state’.46 Another was its heavy reliance on the discretion of experts and their
dubious claims to objectivity. Neo-liberalism represented a political sensibility and aesthetic
that emphasized the unknowability of the social world and was instinctively sceptical of
those forms of expertise that laid claim to know the world in granular detail, as a way of
making it amenable to intervention. Most fundamentally, neo-liberalism was associated
with a deep scepticism of claims to know or represent the ‘social body’ and a tendency to
note the mystifications, misrepresentations and outright deceptions involved in its claims to
accurately understand and faithfully represent ‘social’ value, preferences and predilections.
The target of neo-liberal critique, then, was only in part the institutional forms and political
programmes of the social state – the deeper target was ‘sacralization of the social’ which
accompanied it and was so central to its political imaginary. In that sense, to draw again on
Collier, neo-liberalism ‘functions as a form of critique in Michel Foucault’s sense, a
movement of thought that refuses the “sacralization of the social”’.47 What neo-liberalism
offered, accordingly, was a set of critical technologies to be deployed in and against the
social state in the service of its desacralisation, ‘de-socialisation’48 or ‘disenchantment’.49
‘Desacralisation’, in this sense, refers to a project of reorganizing the practice of statecraft so
as to de-centre and de-mystify the ‘social’, especially by ensuring that claims to speak and
act for the benefit of the social body are tested, subject to discipline and made accountable,
limited in their reach and, 45 Ibid. 46 Collier, ‘Neoliberalism as Critique’, supra note 8, at 5.
47 Ibid. 48 Rose, ‘Death of the Social’, supra note 38, at 340. 49 Davies, supra note 39, ch.
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October 2024 106 EJIL 35 (2024), 93–139 Articles indeed, eradicated where less suspect
sources of value and authority can be found. It works by reflexivizing the category of the
social – iteratively subjecting it to sceptical scrutiny and self-questioning, rendering it
provisional, fragile and mobile – and, as a result, reduces its vitality as a principle of
collective political action. These techniques of desacralization were multiple and diverse. At
the level of bureaucratic organization, new technologies of performance management
derived from business were applied to the state.50 Performance indicators and audit,
quantification and budget disciplines emerged as new and more formal techniques for
scrutinizing and disciplining bureaucratic discretion in place of systems of accountability
based largely on professional norms and expert credentials. In the domain of economic
regulation, a variety of techniques were developed to overcome rigidity and encourage
practices of reflexivity, learning and continuous improvement. Thus, new regulatory
decision-making protocols – cost-benefit analysis, impact assessment, proportionality
analysis – were developed to ensure that state interference with the proper functioning of
competitive order was adequately justified. Regulatory functions were outsourced to
independent bodies and, at the same time, disaggregated, with some governance tasks
reallocated to private entrepreneurial actors organized in competitive relation with one
another, and the state was recast in the new role of overseer of self-governed firms. At the
same time, there was a reconfiguration of the role of scientific and technical expertise in
regulatory decision-making. This entailed a transfer of responsibility for science and
innovation to the market and a parallel reassertion of the authority of science and scientific
expertise over both bureaucratic expertise and public knowledges. It was made manifest
through the disciplining of regulatory decision-making through formalized practices of
scientific risk assessment and through increasing delegation of values debates to expert
bodies.51 All of these new modalities of regulatory governance helped to distance
regulatory decision-making practices from those associated with the social state, in which
the economy was governed in the name of, and for the protection of, social values and the
social body. Each of them helped to reflexively embed practices of self-critique in the
regulatory decision-making practices themselves. At the level of political rationality, the
disenchantment of the social state involved reordering practices of statecraft around the
idea of competitive order (paradigmatically, market order, though also other forms). On the
one hand, this meant subjecting states themselves to the discipline of competition and
reorganizing economic governance around the pre-eminent goal of national economic
competitiveness.52 Thus, states were increasingly enrolled into an international economic
order characterized by intense interstate competition for capital and talent. A variety of
state functions 50 See, e.g., C. Hood et al., Regulation inside Government: Waste-Watchers,
Quality Police, and Sleazebusters (1999); see generally Power, supra note 38. 51 See
generally, S. Jasanoff, The Fifth Branch: Science Advisers as Policymakers (1998); S.
Jasanoff, Science and Public Reason (2012); Jasanoff, ‘Constitutional Moments in Governing
Science and Technology’, 17(4) Science and Engineering Ethics (2011) 621; Jasanoff, ‘The
Practices of Objectivity in Regulatory Science’, in C. Camic, N. Gross and M. Lamont (eds),
Social Knowledge in the Making (2011) 307. 52 See note 60. Downloaded from
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Disordering’ 107 were subjected to direct competition from private actors offering such
functions for profit. On the other hand, it meant reorienting the state around the goal of
creating and sustaining the essential preconditions for competitive (market) order.53 This
involved establishing the appropriate legal foundations for efficient competitive markets,
such as property rights, a regime of contract, stable money, an orderly insolvency regime,
efficient corporate governance, adequate risk regulation and so on. In addition, various
regulatory technologies were marshalled to help produce certain capacities and behaviours
at the individual level necessary for well-functioning competitive order – self-responsibility,
entrepreneurialism, prudence, the capacity to engage in the particular kinds of calculation
characteristic of market actors. In this way, as Rose noted early on, ‘social insurance, as a
principle of solidarity, gives way to a kind of privatization of risk management’.54 It also
included the development of novel evaluative methodologies, derived from the new field of
law and economics, for assessing the normative desirability of particular laws by reference
to their impact on market competition.55 In all of these ways, then, neo-liberalism
inaugurated a new rationality of rule in which competitive order, rather than ‘the social
body’, appeared as the a priori of political practice and the ‘zone, target and objective’ of
government. But, here, a key distinction needs to be made, which is important for the
account I am presenting here. On the one hand, it is usual to interpret the centrality of
competitive order in the neoliberal imagination in programmatic terms as a valorization of
markets as the ideal form of social order and as expressing an ideological and normative
preference for ‘market’ values over other values. But the literature set out above suggests a
different interpretation. Reorganizing statecraft around a notion of ‘competitive order’, in
this account, was a way of disenchanting (‘desacralizing’) the social state. The virtue of
competitive (market) order was that it avoided the question of social value altogether. That
is to say, it provided a technique for solving the problem of value (the production of ‘market
value’ via the competitive process) without recourse to a mystified conception of ‘social
value’. It offered a programme of economic governance (constituting and maintaining
competitive order) that apparently did not rely on a substantive notion of the health of the
social body.56 It offered an apparently secure – because desocialized – normative
standpoint from which to mount a pragmatic critique and reinvention of the social state. It
offered, furthermore, a set of technologies for addressing the specific pathologies of the
social state by promising a modality of statecraft that was decentralized rather than subject
to singular control; dynamic rather 53 M. Foucault, The Birth of Biopolitics (2008); Davies,
supra note 39; T. Biebricher, The Political Theory of Neoliberalism (2018). 54 Rose,
‘Government’, supra note 38, at 296. 55 See, e.g., Davies, supra note 39, ch. 3 (addressing
the adoption of Chicago School’s efficiency analysis of law across a variety of regulatory
and bureaucratic agencies). 56 Even if different governments and thinkers offered divergent
visions of ‘right’ competitive order, it is a premise of neo-liberal practice that the question of
‘right’ competitive order is, ultimately and essentially, a technical question, a question of
deduction from first principles or revealed through a process of legal evolution.
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October 2024 108 EJIL 35 (2024), 93–139 Articles than rigid and inflexible; open-ended
rather than narrowly teleological; and modest rather than hubristic in its claims to
knowledge. The centrality of competitive order in neo-liberal thought and practice, then, on
this account signals less a celebration of competitive ‘market value’ as an authoritative
expression of ‘true’ or ‘right’ value, and more, in contrast, a means of avoiding the question
of ‘right’ value altogether. Neo-liberalism is a mode of governmentality – that is to say, it is
oriented around the displacement of thick, normative questions of social value – and its
preferred choice of means is the competitive process as a mere, formal technique of
valuation. Moreover, it is a set of technologies for reconstituting the social state as an
entrepreneurial, competitive and self-reflexive actor, not (or not just) a programme for
expanding and multiplying markets as the pre-eminent and privileged form of
institutionalized social order.57 This way of understanding neo-liberalism leads us quite
directly, it seems to me, to a different way of interpreting the transformations of global
economic governance in the last two decades of the 20th century. The claim advanced here
is that, during this period, institutions and processes of global economic governance were
reconstituted as spaces for the deployment and operationalization of these critical
technologies of disenchantment. On this account, neo-liberal global economic governance
helps to produce reflexive states – where this process is understood as the embedding and
internalization of a particular kind of impulse towards competitive self-reinvention,
operationalized through specific institutionalized practices of self-reflection and cultures of
expert reflexivity and enabled by a context of intense interstate competition for capital.
Importantly, I conceive of this reflexivizing logic of neo-liberalization as sitting alongside its
more programmatic logic and the relationship between the two as complex and highly
ambiguous. The point is that both need to be acknowledged as central dynamics set in train
during the late 20th-century transformation of global economic governance. In the next
section, I will put flesh on these bones and show how late 20th-century global economic
governance might be reinterpreted along these lines. But, for now, the point I want to make
is that this approach opens up precisely the space that is 57 An aside: in what follows, my
analysis is most closely aligned with those who deploy the idiom of neoliberal
governmentality to understand the ‘global governance of state behaviour’ or the ‘conduct of
the conduct of countries’. Merlingen, ‘Governmentality: Towards a Foucauldian Framework
for the Study of IGOs’, 38(4) Cooperation and Conflict (2003) 361, at 362; J. Joseph, The
Social in the Global: Social Theory, Governmentality and Global Politics (2012). This is
connected to, but distinct from, that work that addresses the constitution of the
responsibilized and autonomous individual subject (technologies of the self) and the
production of the self-governed and adaptive firm (techniques of management). It is also
distinct from, though connected to, that literature that focuses on the knowledge practices
of global agencies: their entanglements in ways of knowing and thus governing
populations and their role in the construction of associated imaginaries of governance. See,
e.g., M. Dean, Governmentality: Power and Rule in Modern Society (2nd edn, 2010), ch. 10;
W. Larner and W. Walters (eds), Global Governmentality: Governing International Spaces
(2004); I.B. Neumann and O.J. Sending, Governing the Global Polity: Practice, Mentality,
Rationality (2010); Innes and Steele, ‘Governmentality in Global Governance’, in D.
Levi-Faur (ed.), The Oxford Handbook of Governance (2012) 716. In these analyses,
changes to state structures and institutions are certainly part of the story but, not in
themselves, the focus of attention and are often deliberately decentred. Downloaded from
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Disordering’ 109 foreclosed by the macro-institutional account: it helps us to conceptualize
and describe the active role that global economic governance plays in promoting and
propelling heterogeneity of institutional formations at the state level. It does this in two
main ways. The first and most familiar has to do with the conceptual move of reconceiving
neo-liberalism as, in part, a particular set of techniques or technologies (‘arts’) of governing.
The benefit of this move is that it treats the impact and politics of these techniques as
something to be investigated and not presupposed – that is to say, as a contingent effect of
the particular political projects and purposes for which they are deployed by particular
agents in particular contexts. The analytical turn to ‘techniques’, in other words, comes with
the additional claim that these techniques are under-determined and, by design, are able to
be repurposed.58 They are means of productively assembling new relations and
institutional formations through their practical deployment in particular spaces. In Collier’s
words, they ‘are mobile and amenable to redeployment across contexts; they can be used
for different kinds of political purposes … there is no deep structural logic that animates the
diverse forms of advanced liberal government. Rather, there is a focus on the contingent
assemblage of various elements in particular countries and sectors’.59 It will be clear why
this approach is helpful as a way of understanding the diversity of institutional forms that
global economic governance has helped to produce over the past three decades and more.
If our focus is on a set of productive technologies of government, and if our method is to
follow these technologies as they assemble and reassemble practices of statecraft, then
institutional heterogeneity is to be expected: variation is endogenous to the model, not
something exogenous that needs further analytical resources to explain. It is, moreover, a
form of explanation that returns actors and their diverse interests and projects to the heart
of the explanatory paradigm in place of ‘neo-liberalism’ as an impersonal and determining
structural force. Second, this approach posits dual dynamics of neo-liberalization: both the
establishment of a new problematic and programme of government (‘how to establish the
foundations of well-functioning competitive order?’) and, at the same time, a set of critical
technologies for doing particular kinds of reflexivizing work on the social state. It is the
addition of the second limb that points us in new directions: the internalization of critical
technologies within reconfigured institutions of governance does not exogenously constrain
the state so much as help to drive particular kinds of institutional innovation on the part of
states, instilling (in principle at least) an aspiration towards the continuous ‘adaptation’ and
‘improvement’ of governance functions. As we will see, this provides us with an
explanatory framework within which dynamics of institutional convergence and divergence
co-exist and, therefore, one in which institutional variation is again a perfectly expected
result, not requiring an analytically problematic differentiation between ‘global structure’
and ‘local context’ to explain. 58 To repeat, this is not the same as claiming that
neo-liberalization is entirely open-ended, as if anything is possible. Neo-liberal
technologies of government are generative, but they also deeply condition the conduct of
government by making available certain strategies and modalities of politics, while
precluding others. 59 Collier, ‘Neoliberalism as Critique’, supra note 8, at 13. Downloaded
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110 EJIL 35 (2024), 93–139 Articles 3 Reinterpreting Late 20th-Century Transformations In
this section, I offer an alternative reading of late 20th-century global economic governance
based on the governmentality literature just set out. Focusing deliberately on those
elements that are most often offered as evidence of the programmatic character of
neo-liberalism, I redescribe them as venues in which a range of critical technologies of
reflexivization – of ‘desacralization’ – were put to work in a manner that has been
profoundly consequential for the emergence of the reflexive regulatory state in all its
heterogenous variety. In this telling, global economic governance appears as a support and
space for such technologies, even as it was reconstituted around them. The heterogeneity
of new state formations, accordingly, appears (in part) as a direct effect of global economic
governance, which promotes institutional innovation, even as it conditions and orientes the
diverse trajectories of institutional development that result. A Constituting the State as an
Entrepreneurial Subject of Competitive Order I begin with the structure that is most often
placed at the heart of the institutional vision of neo-liberalism: inter-jurisdictional
competition. From the late 1980s, in this familiar account, a new order of inter-jurisdictional
competition was constructed, which set states in intense competition with each other for
newly mobile capital. This order rested on three primary elements. First, the freedom of
factors of production (capital, labour) as well as products to move between jurisdictions
was established at the international level. The mobility of finance, for example, was
enabled in part by the activities of bodies such as the International Monetary Fund (IMF) as
well as international regulatory networks in the financial services sector. The international
mobility of products and investment capital was promoted by the structural adjustment
policies of the World Bank and the IMF and entrenched by the quasi-constitutional rules
contained in the law of the WTO and bilateral investment treaties, which, by the end of the
1990s, had become almost universal in reach. Second, this was accompanied by the
construction of a powerful discursive formation valorizing ‘international competitiveness’ as
a core objective of national economic governance and the associated reorganization of
politics around what Philip Cerny and others have called the ‘competition state’.60 And,
third, this period saw the emergence of a range of mechanisms and techniques for
measuring and ranking the governance quality of different states. These rankings were
used to guide the allocation of investment capital and aid in a variety of ways, including via
World Bank lending conditionalities. 60 See, among a large literature, Cerny, ‘Paradoxes of
the Competition State: The Dynamics of Political Globalization’, 32(2) Government and
Opposition (1997) 251; Cerny, ‘The Competition State Today: From Raison d’Etat to Raison
du Monde’, 31(1) Policy Studies (2010) 5; B. Jessop, The Future of the Capitalist State
(2002); Fougner, ‘The State, International Competitiveness and Neoliberal Globalization: Is
There a Future beyond “the Competition State”?’, 32 Review of International Studies (2006)
165; Pedersen, ‘Institutional Competitiveness: How Nations Came to Compete’, in G.
Morgan et al. (eds), The Oxford Handbook of Comparative Institutional Analysis (2010)
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30 October 2024 ‘Global Disordering’ 111 Taken together, these three elements are usually
analysed as mechanisms for sustaining and globally propagating a programmatic
neo-liberal policy consensus and entrenching it in apparently objective indicia of
governance ‘quality’.61 ‘The well-known logic here’, in Adam Harmes’ words, ‘is that capital
mobility (through liberalized financial markets and free trade) forces states to compete for
transnationally mobile capital by providing the types of neo-liberal policies that investors
and corporations demand’.62 Indeed, many accounts emphasize the degree to which this
order was consciously constructed to have that effect: as Harmes and Tore Fougner (and
others) have observed,63 the key features of this system share much with the model of
‘competitive federalism’ proposed over the course of the 20th century by thinkers such as
Friedrich Hayek, James Buchanan, Milton Friedman, Alexander Rustow and Wilhelm
Roepke. So far, so good, but we can begin to open space for a more multilayered
interpretation by observing, first, that there are two distinct kinds of constraint at play in
this order: on the one hand, the quasi-constitutional constraints guaranteeing mobility
rights and, on the other, the practical and perceived constraints that result from competitive
pressure itself, which is a practical effect of this quasi-constitutional structure. It is the latter
that do most of the work. The first – formal guarantees of mobility rights inscribed in
international governance structures – in theory, need only be minimally adequate to
generate competitive pressure. And, in practice, they are indeed much less formally
constraining than is often acknowledged: as any international lawyer will tell you, the legal
disciplines contained in investment treaties, trade treaties, the IMF’s Articles of Association
and so on are full of conditions, qualification and limitations that offer states considerable
room for manoeuvre. The second – the competitive pressures themselves, as mediated
through global policy orthodoxies – can indeed be tremendously powerful, but it is
important to remember that the particular directions in which they push states are not
structurally given. It is true that, at any moment in time, a state or political community faced
with capital flight, currency depreciation or a debt crisis will experience this governance
structure as a real constraint on its policy freedoms. And during periods in which there is a
clearly dominant global policy orthodoxy, this governance structure will often work in ways
that entrench it. But this should be seen as a contingent effect of its operation in particular
circumstances and a fact to be explained.64 61 For a detailed account of the literature
taking this approach, see Lang, ‘Performativity and Expertise’, in M. Hirsch and A. Lang
(eds), Edward Elgar Research Handbook on the Sociology of International Law (2019) 122.
For similar arguments within the governmentality tradition, see, e.g., Neumann and
Sending, supra note 57; Löwenheim, ‘Examining the State: A Foucauldian Perspective on
International “Governance Indicators”’, 29 Third World Quarterly (TWQ) (2008) 255;
Fougner, ‘Neoliberal Governance of States: The Role of Competitiveness Indexing and
Country Benchmarking’, 37 Millennium Journal of International Studies (2008) 303; Zanotti,
‘Governmentalizing the Post-Cold War International Regime: The UN Debate on
Democratization and Good Governance’, 30(4) Alternatives (2005) 461. 62 Harmes,
‘Neoliberalism and Multilevel Governance’, 13(5) RIPE (2006) 725, at 733. 63 See, e.g.,
ibid.; Fougner, supra note 61. 64 To be sure, many of those who originally devised
competitive federalism saw it in substantive and structural terms as a device imposing a
beneficial constraint on the ability of governments to intervene harmfully in the working of
competitive markets. Friedrich Hayek, for example, notes that, under this structure, ‘certain
types of coercion’ would simply not be possible and that ‘a lot of interferences in economic
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on 30 October 2024 112 EJIL 35 (2024), 93–139 Articles With the benefit of more than
two decades of hindsight, an additional and different dynamic has become clear. As states
in different regions of the globe have been enrolled into this order of inter-jurisdictional
competition, iterative projects of governance innovation have been set in train as states
have experimented with a range of competitiveness strategies. Although these governance
experiments have family resemblances, they have led in very different directions. In Eastern
Europe, for example, neo-liberal reforms famously began with a radical shock in the form of
the rapid adoption of doctrinaire free-market policy prescriptions. The post-communist
regimes in these countries understood some of the risks but had internalized neo-liberal
criticisms of socialist economic governance and were, above all, in desperate need of
industrial capital. As Hilary Appel and Mitchell Orenstein have described, from around the
mid-1990s onwards, these countries engaged in a process of ‘competitive signalling’,
adopting iterative liberalizing economic reforms as a way of attracting foreign
investment.65 Some of these policies were those encouraged by the IMF, the European
Union (EU) and the European Bank for Reconstruction and Development, but many (such as
flat taxes, pension privatization, radical cuts in corporate income tax) were highly
experimental and not necessarily favoured by such institutions of global orthodoxy. One
result of this dynamic was the adoption in a number of these countries of a variety of
avant-garde forms of neo-liberalism that have not, in the main, been promulgated
elsewhere. More generally, it contributed to what Gareth Dale and Adam Fabry have shown
to be a highly differentiated roll-out of neo-liberal policies across the region.66 In Latin
America, the early phases of neo-liberalization were similarly doctrinaire, especially in the
context of abrupt structural adjustment programmes of the 1980s and early 1990s. This
period saw the successful deinstitutionalization of the particular bureaucratic-authoritarian
state forms associated with policies of import substitution industrialization and a
reorientation of production towards export-oriented agri-mining sectors, financed to a large
degree by foreign investment. It was, famously, an economic development strategy that
ended up intensifying economic inequalities, creating new forms of political exclusion and
mobilizing political resistance. The subsequent ‘pink tide’ of progressive reforms, which
swept the continent from around the 2000s onwards, represented, to be sure, a turn away
from neo-liberal policies, at least to some degree. But – and this is the key point – at the
same time, it also represented become impractical’. F.A. Hayek, The Constitution of Liberty
(1960), at 184; F.A. Hayek, Individualism and the Economic Order (1980), at 266. But, in
truth, this is a wager on the part of neo-liberal thinkers, reflective of their particular political
projects and ideologies, rather than a constitutive formal feature of the work of establishing
inter-jurisdictional competition. As Collier notes, it is not at all clear that we should accept
this wager without interrogation: ‘the political orientations of neoliberal thinkers do not
predetermine how their styles of thinking and techniques of government are taken up’, nor
do the predictions of such thinkers necessarily deserve special deference. Collier,
‘Neoliberalism as Critique’, supra note 8, at 13. 65 H. Appel and M.A. Orenstein, From
Triumph to Crisis: Neoliberal Economic Reform in Post-communist Countries (2018), ch. 5;
see also generally C. Ban, Ruling Ideas: How Global Neoliberalism Goes Local (2016); J.
Johnson, Priests of Prosperity: How Central Bankers Transformed the Post-communist
World (2016). 66 Dale and Fabry, ‘Neoliberalism in Eastern Europe and the Former Soviet
Union’, in D. Cahill et al. (eds), The Sage Handbook of Neoliberalism (2018) 234.
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October 2024 ‘Global Disordering’ 113 an intensification of the dynamic of governance
experimentation associated with the neo-liberal turn. A variety of new governance-based
competitiveness strategies emerged across Latin America, combining strategies of
international economic integration with (aspirationally) flexible, local, open-ended and
decentralized governance forms. The ‘neo-extractivism’ of Ecuador and Argentina, for
example, combined a continued heavy reliance on agri-mining and energy exports with
differentiated social and environmental governance arrangements, including new
citizenship rights, corporate social responsibility initiatives and sustainability standards.
Brazil’s (and others’) ‘new developmentalism’ combined macroeconomic orthodoxy with the
strategic promotion of internationally competitive firms (Petrobras, Embraer and the
automotive industry via the Innovar-Auto programme), alongside new modes of
engagement between the state and civil society, including formal dialogue spaces,
participatory budgeting, public policy councils and so on. The result was that
neo-liberalism was, and indeed remains, in Thomas Perrault and Patricia Martin’s words, ‘a
mobile project in Latin America’.67 Across East Asia – from Malaysia and Thailand, to
Indonesia, Singapore, Taiwan, China and elsewhere – there was never the wholesale
adoption of Washington Consensus policies in the manner of Eastern Europe or Latin
America. But elites across the region did internalize the neo-liberal critique of the social
state and did engage in a variety of projects to re-institutionalize state structures in
response to the competitive pressures associated with their insertion into global economic
circuits. Again, the trajectories set in train were diverse and involved a high degree of local
experimentation. In Aihwa Ong’s persuasive account, zoning was a key governance
technology through which neo-liberalization proceeded across East Asia. States sought to
integrate their economies into global value chains through the establishment of a ‘galaxy of
differentiated zones’, such as industrial parks with tailored and flexible regimes of
governance facilitating the ‘differential insertion of different populations into circuits of
global capital’.68 The state itself was reconfigured as a provider of infrastructure and a
trained workforce to multinational firms spatially organized across regional production
networks. Isabella Weber’s account of China’s encounter with neo-liberalization tells a
similar story – of elites internalizing the neo-liberal critique of socialist planning but
refusing to replace it with another idealized model and instead pursuing a path of
incremental and tailored experimentation, on a region-by-region basis, from the
transformation of agricultural production, to price reform, to selective and conditional
liberalization of trade and investment.69 The point here is simply that all this differentiation
does not represent a departure from neo-liberalism but, rather, the unfolding of a
contradictory and messy process 67 T. Perreault and P. Martin, ‘Geographies of
Neoliberalism in Latin America’, 37(2) Environment and Planning A: Economy and Space
(2005) 191, at 191. 68 Ong, ‘Graduated Sovereignty in South-East Asia’, 17(4) Theory,
Culture and Society (2000) 55; see also A. Ong, Neoliberalism as Exception, supra note 39,
especially ch. 4. 69 I. Weber, ‘China and Neoliberalism: Moving beyond the China Is/Is Not
Neoliberal Dichotomy’, in Cahill et al., supra note 66, 219. Downloaded from
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EJIL 35 (2024), 93–139 Articles of neo-liberalization. Heterogeneity of this sort, in other
words, and the dynamics of pluralization that accompany it, should not be analysed as a
move away from neoliberal prescriptions but, rather, as the unfolding of spiralling dynamics
set in train by the widespread deployment at the international level of the neo-liberal
technique of subjecting governance to competitive order and the reconstitution of states as
‘competitive and entrepreneurial market subjects’.70 It is precisely what we would expect
from a system of governance-based inter-jurisdictional competition in which states are
re-institutionalized in entrepreneurial terms as ‘competition states’. Moreover, and
importantly, the fields of expert knowledge associated with interjurisdictional competition –
that is to say, expertise about the quality of governance and about how to be competitive –
have emerged as highly reflexive domains, characterized by intense internal dynamics of
contestation, differentiation and pluralization. The discourse of ‘national competitiveness’
was from the beginning a rather heterogenous and ambiguous mix of loosely articulated
policy ideas, and its polysemous quality was only intensified as it became more influential
in centres of political power.71 As others have described, the 1990s and 2000s saw the
development of a field of consultancy expertise advising national policy-makers on locally
tailored competitiveness strategies and the catalysing of entrepreneurial strategies of both
emulation and differentiation.72 Over time, accordingly, the range of available
competitiveness strategies has broadened, as new dynamics of contestation and innovation
have been set in train.73 In parallel, practices and techniques of measuring the quality of
governance have become newly reflexive, prompting some to posit the ‘rise of a reflexive
indicator culture’.74 As Tero Erkkilä and Ossi Piironen recount, this has been evident even in
that bastion of global orthodoxy, the World Bank’s Worldwide Governance Indicators
(WGI) project, whose producers over time moved from a position of optimism, confidence
and certainty to an increasing appreciation of the limits of their project and an awareness of
the criticisms that it has attracted.75 One of the World Bank’s responses to criticism of the
WGI as ideologically one-sided, for example, was to expand the range 70 Fougner, supra
note 60, at 324. 71 Linsi, ‘The Discourse of Competitiveness and the Disembedding of the
National Economy’, 27(4) RIPE (2020) 855, at 865. 72 Davies, supra note 39; Fougner,
supra note 60; Sum, ‘The Production of Hegemonic Policy Discourses: ‘Competitiveness’ as
a Knowledge Brand and Its (Re-) Contextualizations’, 3(2) Critical Policy Studies (2009)
184; Pederson, supra note 60; Bristow, ‘Everyone’s a “Winner”: Problematising the
Discourse of Regional Competitiveness’, 5 Journal of Economic Geography (2005) 285. 73
Sum, supra note 72, at 198. 74 Bhuta, Malito and Umbach, ‘Introduction: Of Numbers and
Narratives – Indicators in Global Governance and the Rise of a Reflexive Indicator Culture’,
in N. Bhuta, D.V. Malito and G. Umbach (eds), Palgrave Handbook of Indicators in Global
Governance (2018) 1. 75 Erkkilä and Piironen, ‘(De)politicizing Good Governance: The
World Bank Institute, the OECD and the Politics of Governance Indicators’, 27(4) Innovation:
The European Journal of Social Science Research (2014) 344. On reflexivity in the world of
indicators, see also generally Desai and Schomerus, ‘"There Was a Third Man …": Tales
from a Global Policy Consultation on Indicators for the Sustainable Development Goals’,
49(1) Development and Change (2018) 89; Lang, supra note 61. Downloaded from
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Disordering’ 115 of data sources on which it drew and, in particular, to include more data
sources produced by non-commercial, civil society and southern governmental sources.76
A similar trajectory can be seen in what some describe as the move from ‘first-generation’
composite measures to ‘second-generation’ dashboard indicators, which eschew single
aggregate measures of governance quality in favour of a suite of disaggregated measures
covering a range of different elements. Dashboard measures – such as that offered by the
Organisation for Economic Co-operation and Development’s (OECD) Government at a
Glance series – are explicitly an attempt to avoid a system of measurement based on an
ideal programmatic model of good governance, instead providing data with which ‘a
country can assess itself ’ according to its own standards, ‘allow[ing] for nuanced
distinctions to be made between … countries, reflecting their distinctive administrative and
social traditions’.77 Furthermore, a dynamic of competition has increasingly emerged
between different providers of governance indicators – from the World Bank, to the World
Economic Forum and the OECD, to Transparency International, the Ibrahim Index of African
Governance and the Bertelsmann Foundation’s Sustainable Governance Indicators,
amongst many others – with each seeking its own niche, positioning itself in relation to
prevailing elite orthodoxy, allying itself to specific constituencies and decision-making
centres and seeking to build credibility with particular audiences as well as links to
particular kinds of capital. Some see in this (though one must be careful here not to
overstate)78 an emerging dynamic of reflexivization in which alternative measurement
technologies develop corresponding with alternative theories of governance and strategies
of competition. The order of inter-jurisdictional competition established in the latter
decades of the 20th century, then, can be interpreted as a technology for both inducing and
conditioning governance-based competition between states for mobile capital. The key
feature of this order, on this view, is that it helps to constitute a new kind of entrepreneurial
and reflexive state subjectivity, as theorists of the ‘competition state’ have documented. It is
a technology that does not only impose exogenous constraints on policy autonomy but also
reshapes the conduct of statecraft from within, inculcating dynamics of ‘continuous
improvement’, incentivizing governance innovation and valorizing the qualities of flexibility,
reflexiveness and adaptability that are characteristic 76 Probably the most striking example
was the inclusion of 12 new data sources for the 2004 report, including three from
international organizations (African Development Bank, Asian Development Bank and
United Nations Economic Commission for Africa), and six from non-governmental
organizations and universities (Bertelsmann Foundation, Brown University Center for Public
Policy, the Countries at the Crossroads publication of Freedom House, Fundar, the
International Research and Exchanges Board and Vanderbilt University). D. Kaufmann, A.
Kray and M. Mastruzzi, ‘Governance Matters IV: Governance Indicators for 1996–2004’,
World Bank Policy Research Working Paper no. 3630, June 2005, at 6, Table 1. 77
Organisation for Economic Co-operation and Development (OECD), ‘Towards Better
Measurement of Government’, OECD Working Papers on Public Governance no. 2007/1
9OECD (2007), at 3, cited in Erkkilä and Piironen, supra note 75, at 354–355. 78 Erkkilä and
Piironen, supra note 75. Downloaded from
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EJIL 35 (2024), 93–139 Articles of market actors themselves.79 Importantly, and to repeat
a point made earlier, while we need to take these aspirations seriously, we should not take
them at face value. One of the reasons for describing this dynamic of competitive
governance experimentation is precisely to open up its politics to further investigation. How
is the capacity to experiment distributed globally? What sorts of experiment count as
governance ‘innovation’ and by what methods is success distinguished from failure? Which
populations are made vulnerable as subjects of experimentation and with what
consequences? Moreover, what political modalities are precluded, or made more difficult,
when government is practised in a reflexive register? I noted above that techniques of
reflexivization reduce the potency of ‘the social’ as an animating principle of collective
political action: how is this reflected in the forms of governance produced (and not
produced) by the entrepreneurialism of the ‘competition state’? B Minimizing State-Induced
Distortions of Competitive Order In this section, I turn to international trade and investment
law. The development and expansion of both of these fields is one of the most significant
aspects of the neo-liberal transformation of global economic governance. In the field of
international trade law, the establishment of the new WTO famously saw the introduction
of a wide range of new international legal disciplines, alongside a new strengthened
dispute settlement system. In the field of international investment law, similar
developments occurred, with the emergence of a network of thousands of bilateral
investment treaties providing rights to foreign investors affected by host state measures,
alongside an extensive and well-used infrastructure of investor-state dispute settlement to
enforce them. These new developments clearly fit comfortably within an institutional or
programmatic understanding of neo-liberalism. The disciplines contained in international
trade and investment law are, indeed, external constraints on state’s regulatory autonomy,
and they do place limits, to some degree, on the circumstances in which states can interfere
with the workings of the market or act to the detriment of foreign economic actors. In this
section, however, I want to suggest – alongside others who have argued similarly80 – that
some of the most significant elements of these bodies of law can also be productively
understood as technologies of reflexivization. As has been noted by others, neo-liberal
thought – especially that strand of thought associated with the Chicago School – brought
with it a range of novel analytical 79 Larner, ‘Neoliberalism, Mike Moore’, supra note 39. 80
My argument here has particular affinities with Nicolaidis and Shaffer, ‘Transnational
Mutual Recognition Regimes: Governance without Global Government’, 68 Law and
Contemporary Problems (2005) 263 (a reflexive reading of mutual recognition); Nicolaidis,
‘Trusting the Poles? Constructing Europe through Mutual Recognition’, 14(5) Journal of
European Public Policy (2007) 682 (similarly but in a European context); Howse, ‘How to
Begin to Think About the “Democratic Deficit” at the WTO’ (2003), available at
www.law.nyu.edu/sites/default/files/ECM_PRO_060036.pdf; Sabel and Zeitlin,
‘Experimentalist Governance’, in D. Levi-Faur (ed.), Oxford Handbook of Governance (2012)
169; R. Stewart, ‘Remedying Disregard in Global Regulatory Governance: Accountability,
Participation, and Responsiveness’, 108(2) AJIL (2014) 211; Benvenisti, ‘Sovereigns as
Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’, 107(2) AJIL
(2013) 295. Downloaded from https://academic.oup.com/ejil/article/35/1/93/7632077 by
guest on 30 October 2024 ‘Global Disordering’ 117 methods for evaluating the adequacy
of market regulation.81 One of the most important of these methods is derived from the
claim that regulatory objectives should be pursued in ways that as far as possible leave the
workings of competitive (market) order undisturbed.82 This principle leads directly to a
two-stage evaluative method: the first stage assesses whether and to what extent the
measure distorts or impairs existing conditions of market competition; while the second
determines whether there are sufficiently good reasons to do so based on legitimate public
policy objectives and whether there are less distortive means of achieving comparable
results. I said earlier that the ‘desacralization’ of the social state involved a process of
subjecting state claims to speak and act on behalf of ‘collective’ values to scepticism, critical
questioning, limitation and discipline. This two-stage evaluative method is a means of
doing precisely that. It is one of the distinctive features of neo-liberal global economic
governance that, from around the 1980s, this evaluative method was progressively
institutionalized within international trade law (and, to a lesser extent, international
investment law).83 As a result, regulatory decision-making was made subject to the critical
scrutiny of at least two distinct forms of technical expert practice: mixed legal-economic
analysis of a law’s potential distortive impacts and expert assessment of the relative
efficacy of alternative regulatory methods, given defined regulatory objectives. The result of
this process has been complex and not always easily cognisable as ‘deregulatory’ or
‘pro-market’. I illustrate this point using one of the most familiar, but also contentious,
aspects of WTO law – namely, the long line of jurisprudence in which states’ regulatory
measures have been challenged as discriminatory under Article I or III of the GATT, or
equivalent provisions in other agreements,84 and the regulating state has sought to justify
its measure under the so-called general exceptions provision in Article XX of the GATT.
This jurisprudence is well known, and I will make just a few observations. While these
GATT provisions date from 1947, a crucial set of jurisprudential development began to
occur in the late 20th century, which over time brought these provisions close in their
application to the two-stage evaluative method, set out earlier. Thus, the GATT
nondiscrimination principle began to be interpreted much more explicitly as a measure of
81 Amongst a voluminous literature, for an insightful and accessible account, see Lleras,
‘Neoliberal Law and Regulation’, in Brabazon, supra note 18, 61. 82 This principle for
evaluating state action is a central feature of neo-liberal thought, developed in some depth
in early writings through the middle decades of the 20th century. For a useful survey, see,
e.g., Biebricher, supra note 53, at 46ff. 83 I have in mind here the incorporation of a form of
proportionality analysis into key disciplines of investment law. Separately, Perrone offers a
different account of the relation between international investment law and neoliberal
legality, which resonates strongly with the idea of desacralisation relied upon here. In his
account, international investment law facilitates the contractualisation of investor-state
relations in the neoliberal period, as a tool for ‘reduc[ing] the relevance of the social in legal
reasoning’ governing investor rights. Perrone, ‘Neoliberalism and Economic Sovereignty:
Property, Contracts and Foreign Investment Relations’, in Brabazon, supra note 18, 43, at
45. 84 For example, Article 2.1 of the Agreement on Technical Barriers to Trade (TBT
Agreement) 1994, 1868 UNTS 120. Downloaded from
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EJIL 35 (2024), 93–139 Articles interference with competitive order: a measure was treated
as discriminatory, in other words, where, and to the extent that, it could be shown to modify
existing conditions of market competition. While this interpretation has a long history in
GATT jurisprudence,85 it was considerably extended in the Appellate Body’s jurisprudence
after the creation of the WTO. The non-discrimination norm was explicitly stated to ‘provide
equality of competitive conditions’ for imported products and to ‘protect expectations … of
[an] equal competitive relationship’ between imported and domestic products, and its
application came to require quasi-economic analysis of a measure’s competitive effects.86
At the same time, parts of the GATT’s general exceptions provision were also reinterpreted
to conform more closely to the second stage. Regulatory measures were required to be the
‘least trade restrictive’ means of achieving the desired public policy objective.87 In a further
development, the language of ‘necessity’ in Article XX was interpreted to include a sui
generis proportionality test, falling somewhere between cost-benefit analysis and
means-end proportionality.88 Essentially, the same tests were subsequently read into the
corresponding provisions of other WTO agreements.89 In the large number of WTO cases,
which involve challenges to regulatory measures relating to health, environmental
protection, consumer protection or social protection, the Appellate Body has developed an
approach to assessing regulatory measures that focuses primarily on ensuring that they are
transparent, implemented in a procedurally fair, other-regarding and scrupulously
even-handed manner and well-calibrated to risk, and that the competitive distortions that
they case are not arbitrary or entirely avoidable. Many examples could be cited.90 One of
the best is the 85 GATT, Italian Discrimination against Imported Agricultural Machinery –
Report of the Panel, 23 October 1958, L/833, BISD 7S/60, para 12; GATT, United States –
Section 337 of the Tariff Act of 1930 – Report of the Panel, 7 November 1989, L/6439,
BISD 36S/345, paras 5.11–5.21. 86 See generally WTO, Japan – Taxes on Alcoholic
Beverages – Report of the Appellate Body, 1 November 1996, WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R, at 109, 110; WTO, European Communities – Measures
Affecting Asbestos and Asbestos-Containing Products – Report of the Appellate Body, 5
April 2001, WT/DS135/AB/R, paras 97–98. On the move from non-discrimination as
‘anti-protectionism’ to non-discrimination as ‘competitive neutrality’, see A. Lang, World
Trade Law after Neoliberalism (2011). 87 GATT, United States – Section 337 of the Tariff
Act of 1930 – Report of the Panel, 7 November 1989, L/6439, BISD 36S/345, paras
5.25–5.27. 88 The seminal case is WTO, Korea – Measures Affecting Imports of Fresh,
Chilled and Frozen Beef – Report of the Appellate Body, 10 January 2001,
WT/DS161/AB/R, WT/DS169/AB/R. Notably, proportionality analysis also subsequently
emerged as a prominent aspect of international investment law as it was applied in the
context of compensating foreign investors for harms suffered as a result of regulatory
measures – a connected development, even though the analogy is not perfect. Amongst a
vast literature, see generally C. Henckels, Proportionality and Deference in Investor-State
Arbitration: Balancing Investment Protection and Regulatory Autonomy (2015). 89 In
respect of Article 2.1 of the TBT Agreement, supra note 84, see especially WTO, United
States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna
Products – Report of the Appellate Body, 13 June 2012, WT/DS381/AB/R; WTO, United
States – Measures Affecting the Production and Sale of Clove Cigarettes– Report of the
Appellate Body, 24 April 2012, WT/DS406/AB/R. 90 The other obvious example would be
the equally famous Shrimp/Turtle case in which the Appellate Body similarly adopted the
view that (quasi-)extraterritorial measures occurring outside a state’s jurisdiction were in
principle permissible but must be applied in an other-regarding manner, attentive to the
differences in conditions in other states, and recognizing that different means of achieving
regulatory Downloaded from https://academic.oup.com/ejil/article/35/1/93/7632077 by
guest on 30 October 2024 ‘Global Disordering’ 119 long-running dispute between Mexico
and the USA regarding US measures seeking to protect dolphin populations harmed by
tuna fishing in the Eastern Pacific Ocean (outside US jurisdiction).91 The first disputes over
these measures, brought in the early 1990s before the WTO was created, resulted in two
panel decisions that determined that such measures, in which a state seeks to impose its
preferred production methods outside its territorial jurisdiction by use of an import ban,
were simply not permitted under the GATT. These decisions were unadopted and so were
not binding, but the dispute did nevertheless help prompt the USA to redesign its measure,
so that it no longer banned imports of non-compliant tuna but, rather, merely established a
labelling standard for ‘dolphin-safe’ tuna. Almost two decades later, this labelling measure
was the subject of a further challenge, this time in the WTO under an analogous provision
in the TBT Agreement.92 The Appellate Body again found against the USA but did so on
the basis that the labelling measure imposed differential requirements that were not
properly calibrated to the risks posed by different categories of imports. (Some tuna
products, in other words, were given access to the dolphin-safe label, even though they did
in fact cause some degree of harm to dolphins.) Thereafter, there were two further
compliance proceedings, as the USA sought incrementally to modify the regulation to bring
it into compliance with its WTO obligations. It lost the first such compliance proceeding but
ultimately prevailed in the second, with both the panel and the Appellate Body finally
being satisfied that the labelling measure was satisfactorily ‘calibrated to the risks to
dolphins arising from the use of different fishing methods in different areas of the ocean’.93
In this episode – and in the numerous others like it throughout WTO jurisprudence – the
regulatory disciplines contained in international trade law work critically and reflexively:
they work, in other words, by prompting governments to optimize the design of their
regulatory measures, by reference to their own (internal) objectives as objectives may be
suitable in different circumstances: WTO, United States – Import Prohibition of Certain
Shrimp and Shrimp Products – Report of the Appellate Body, 6 November 1998,
WT/DS58/AB/R. Other illustrative cases include WTO, United States – Measures Affecting
the Production and Sale of Clove Cigarettes, 24 April 2012, WT/DS406/AB/R; WTO,
European Communities – Measures Prohibiting the Importation and Marketing of Seal
Products, 18 June 2014, WT/DS400/AB/R/ WT/DS401/AB/R; and WTO, Australia – Certain
Measures concerning Trademarks, Geographical Indications and other Plain Packaging
Requirements applicable to Tobacco Products and Packaging, 29 June 2020,
WT/DS441/AB/R and Add. 1/ WT/DS435/ AB/R and Add.1. 91 See GATT, United States –
Restrictions on Imports of Tuna – Report of the Panel, 3 September 1991, DS21/R, DS21/R,
BISD 39S/155 (unadopted); GATT, United States – Restrictions on Imports of Tuna – Report
of the Panel, 16 June 1994, DS29/R (unadopted); WTO, United States – Measures
Concerning the Importation, Marketing and Sale of Tuna and Tuna Products – Report of the
Appellate Body, 13 June 2012, WT/DS381/ AB/R; WTO, United States – Measures
Concerning the Importation, Marketing and Sale of Tuna and Tuna Products – Recourse to
Article 21.5 of the DSU by Mexico – Report of the Appellate Body, 3 December 2015,
WT/DS381/AB/RW and Add.1; WTO, United States – Measures Concerning the
Importation, Marketing and Sale of Tuna and Tuna Products – Recourse to Article 21.5 of
the DSU by the United States – Report of the Appellate Body, 11 January 2019,
WT/DS381/AB/RW/USA and Add.1; WTO, United States – Measures Concerning the
Importation, Marketing and Sale of Tuna and Tuna Products – Second Recourse to Article
21.5 of the DSU by Mexico, 11 January 2019, WT/DS381/AB/RW2 and Add.1. 92 TBT
Agreement, supra note 84. 93 WTO, US – Tuna II (Mexico – Second Recourse to Article
21.5), supra note 91, para 7.13. Downloaded from
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EJIL 35 (2024), 93–139 Articles well as to their impacts on others. Technical examination of
a measure’s competitive impacts becomes a prompt for a further examination of its
justifiability, with the degree of the competitive impacts indexing the rigour of that
examination. In episodes of this kind, then, international regulatory disciplines appear to
work less as a mechanism for deregulation or for the propagation of regulatory orthodoxies
and more like a set of techniques for promoting reflexivity of a particular, optimizing kind in
the regulatory practice of states. While it is beyond the scope of this article to examine in
detail, it is worth noting in general terms the larger stakes of this dynamic. For one thing, it
has important implications for the global distribution of regulatory power. These legal
disciplines, and the line of jurisprudence interpreting them, has played an important role in
enabling some states – those with large market power as well as high governance capacity
measured in reflexive terms – to exert hugely consequential forms of quasiextraterritorial
regulatory power. Such states have not only been authorized to impose substantial
compliance costs on external constituencies, but they have also been permitted to exert
disproportionate influence over the development of global regulatory standards. There are
also, for another thing, implications for forms and modalities of cross-border regulatory
interactions: the forms of other-regarding regulatory cooperation favoured by these
techniques of reflexivization have deeply shaped such interactions, reconfiguring channels
and modalities of influence in profound ways. Finally, the particular legal-technical method
for evaluating state measures described in this section has implications for the production
and distribution of regulatory credibility and legitimacy. This is because it is a method that
subjects some kinds of regulatory measures to more sceptical scrutiny than others – most
obviously, those measures that are directly targeted at modifying current conditions of
competition within existing markets rather than merely incidentally having that effect.
Salient examples of such measures would include development measures to shift a
country’s position in the historically produced global distribution of comparative advantage,
remedial measures to correct the outcomes of highly distorted global markets or industrial
policy measures to catalyse ‘green’ investment currently under-produced given existing
conditions of competition. C The Internationalization of Regulatory Policy A similar story
can be told about a third feature of late 20th-century global economic governance –
namely, the internationalization of regulatory policy. The term ‘regulatory policy’ is used to
mean different things, but I have in mind here the formation of a new body of state
expertise about the management of the regulatory process itself, which emerged from
around the 1970s. Regulatory policy, in this first iteration, developed in connection with a
variety of critiques of the regulatory cultures of the social state: the prevalence of
regulatory capture by vested interests, poor incentive structures within regulatory
bureaucracies, the reactivity of most regulatory decision-making, excessive risk aversion on
the part of regulators and inattention to economic burdens, the difficulties of reviewing and
updating regulation as circumstances change Downloaded from
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Disordering’ 121 and the use of regulation as a form of symbolic politics, among others. By
way of response to these critiques, a range of regulatory decision-making routines and
practices were developed and consolidated during the 1980s, which internalized certain
practices of critical self-reflection into the regulatory decision-making process itself. These
included cost-benefit analysis, impact assessment, independent regulatory audit,
formalized stakeholder consultation, the independence of regulatory process from
government, among others. Like the new public management more generally, with which
they are closely related, these decision-making practices represented the adoption in the
public regulatory domain of a number of the sorts of reflexive internal control systems that
had begun to emerge within firm-level organizational structures around the same period.94
They also represented another way of operationalizing precisely the same core neo-liberal
principle as that described in the previous section – namely, that good regulations are those
that, ‘on balance, bring[] a net benefit to the entire community in the manner least
restrictive of market competition’.95 They are, in a particularly obvious way, an instantiation
of precisely the sorts of critical technologies of reflexivization that I described in the first
section. The adoption, and spread, of these practices since the 1990s is primarily a national
story, usually told comparatively. But it has also played out across a variety of international
spaces. In the early 1990s, for example, the OECD turned its attention to regulatory policy
and set itself the task of distilling the core content of this regulatory expertise. In 1995, it
adopted what has been described as the ‘first international standard on regulatory quality’,
entitled the OECD’s Recommendation on Improving the Quality of Government Regulation
as well as a ‘reference checklist for regulatory decision-making’, consisting of 10 questions
that regulators ought to ask themselves during the process of designing regulations.96
Since then, it has produced a variety of new recommendations, reports and country reviews,
as well as, more recently, a flagship index of regulatory quality, the Indicators of Regulatory
Quality and Governance. The OECD itself, to be sure, has relatively few levers of power
that it can use to encourage the adoption of these recommendations by its members (and
even fewer in respect of non-OECD countries), and its influence in the area has been largely
indirect. But, aside from the OECD, other institutions of global economic governance are
also active in relation to regulatory policy. Navroz Dubash and Bronwen Morgan report that
some aspects of the above regulatory reform programme (primarily regulatory
independence) were effectively imposed on some countries through World Bank
conditionalities, especially in the context of financing for infrastructure development.97 94
See, e.g., Lobel, ‘New Governance as Regulatory Governance’, in Levi-Faur, supra note 57,
65; Dubash and Morgan, ‘The Rise of the Regulatory State of the South’, in N.K. Dubash
and B. Morgan (eds), The Rise of the Regulatory State of the South: Infrastructure and
Development in Emerging Economies (2013). 95 Morgan, ‘Regulating the Regulators:
Meta-regulation as a Strategy for Reinventing Government in Australia’, 1(1) Public
Management: An International Journal of Research and Theory (1999) 49, at 62; Lleras,
supra note 81. 96 OECD, Recommendation of the Council on Improving the Quality of
Government Regulation, Doc. OCDE/GD(95)/95, OECD/LEGAL/0278, 9 March 1995, at 3.
97 Dubash and Morgan, supra note 93; Dubash, ‘The New Regulatory Politics of Electricity
in India: Embryonic Ground for Consumer Action’, 29(4) Journal of Consumer Policy (2006)
449. Downloaded from https://academic.oup.com/ejil/article/35/1/93/7632077 by guest on
30 October 2024 122 EJIL 35 (2024), 93–139 Articles The World Bank and the OECD have
also begun collecting data on the use of impact assessment, ex-post review, transparency
and consultation as part of the process for measuring the quality of governance across
more than 180 countries.98 Separately, WTO law contains a number of disciplines that
reflect OECD principles of good regulatory practices (GRPs), and landmark cases have used
the functional equivalent of GRP ideas to interpret provisions of WTO law.99 More recently,
there have been moves to incorporate a regulatory policy agenda directly into trade
agreements in a far more comprehensive and explicit manner. As a result, a variety of
new-generation free-trade agreements include requirements to adopt practices such as
regulatory impact assessment and retrospective review, and they include mechanisms for
enhancing transparency and cooperation around the cross-border competitive impacts of
regulatory decisions.100 At the level of practice, the WTO’s TBT Committee has for many
years undertaken a range of primarily information-sharing activities explicitly on the topic of
good regulatory practices. The first phase in the global dissemination of regulatory policy –
from broadly Anglo-American origins, through Western Europe and OECD countries more
generally, and also through the transition economies of the former Eastern bloc – was
associated in practice with an ideological agenda of pro-market regulatory reform focused
on the reduction of regulatory burdens. As a result, many of the most compelling accounts
of regulatory policy during this period have drawn attention to the the ways in which
certain ideological effects are produced through the application of apparently neutral
principles of regulatory policy as complex and opportunistic, but durable, effects of a
combination of procedural rules, specific techniques of quantification, institutional
formations, resource constraints and political context.101 Quantifying the economic costs
to competitiveness associated with new regulations, and requiring them to be transparently
taken into account, for example, has been shown to increase the salience of such costs in
regulatory decision-making processes. The creation of 98 For an overview of the World
Bank’s work in these areas, see https://rulemaking.worldbank.org/; see also De Francesco,
‘Transfer Agents, Knowledge Authority, and Indices of Regulatory Quality: A Comparative
Analysis of the World Bank and the Organisation for Economic Co-operation and
Development’, 18(4) Journal of Comparative Policy Analysis (2016) 350. 99 This would
take considerable time to explain fully, but particularly obvious examples include the
foundational interpretation of ‘necessary’ in the GATT Article XX in the early GATT cases of
GATT Panel Report, Thailand – Restrictions on Importation of and Internal Taxes on
Cigarettes – Report of the Panel, 7 November 1990, DS10/R, BISD 37S/200; the famous
interpretation of the chapeau to GATT Article XX in WTO, United States – Import
Prohibition of Certain Shrimp and Shrimp Products – Report of the Appellate Body, 6
November 1998, WT/DS58/AB/R; as well as the core principles of both the Agreement on
the Application of Sanitary and Phytosanitary Measures (SPS Agreement) 1994, 1867
UNTS 493 (e.g. Articles 2, 5), and the TBT Agreement, supra note 84 (e.g. Article 2). 100
Good examples of the state of the art in this area include Chapter 28 of the United
States-Mexico-Canada Agreement, 1 July 2020 (‘good regulatory practices’), available at
https://ustr.gov/trade-agreements/
free-trade-agreements/united-states-mexico-canada-agreement/agreement-between; and
Chapter 25 of the Trans-Pacific Partnership Agreement between the Government of
Australia and the Governments of Chile, Japan, Malaysia, Mexico, New Zealand, Peru,
Singapore, United States of America and Vietnam, 4 February 2016, [2006] ATNIF 2
(‘regulatory coherence’). 101 For one insightful account, see Morgan, supra note 94.
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October 2024 ‘Global Disordering’ 123 independent offices of regulatory oversight
weakened democratic control over regulatory processes and heightened the influence of
technical experts, especially those trained in particular styles of orthodox economic
expertise. Formalized stakeholder consultation helped on many occasions to give greater
voice to commercially orientated actors with an interest in reducing regulatory burdens. The
same literature also makes clear, however, that we should not reductively view regulatory
policy as a carrier and instrument of particular (neo-liberal) institutional prescriptions. As a
suite of country studies has shown over the last two decades, the remarkable diffusion of
these regulatory practices has been connected to diverse national trajectories of state
transformation and diverse governance arrangements.102 Across these studies, regulatory
policy appears as a set of versatile and mobile technologies, which, in some important
sense, invite repurposing and actively engender differentiated application, with
heterogenous and often unpredictable results. The creation of independent utilities
regulators, to take one example almost at random, can almost entirely depoliticize the
process of rate setting in Chile, while being perfectly compatible (ultimately) with the direct
renegotiation of rates between provincial governments and concessionaries in Argentina.
Reflexive decision-making protocols themselves shift and evolve over time as
methodologies are contested and processes are repurposed for this or that end. The
regulatory tool of cost-benefit analysis, for example, has been gradually differentiated over
time into an entire family of impact assessment methodologies – from traditional
cost-benefit analysis to economic impact assessment, environmental impact assessment,
social impact assessment, sustainability impact assessment and many others besides. Each
of these has myriad variations at the level of specific methodology. David Levi-Faur and
Jacint Jordana have helpfully proposed to conceptualize the effect of regulatory policy in
terms of a ‘policy irritant’ – that is to say, a set of mechanisms for destabilizing established
routines and assumptions and for engendering processes of critical self-reflection.103 It is
a useful concept, not just as a way of describing regulatory policy’s unexpected effects and
open-ended dynamics of evolution but, 102 All of the most prominent cross-country
projects are unequivocal in this respect. See, e.g., Levi-Faur, ‘Global Diffusion of Regulatory
Capitalism’, 598(1) Annals of the American Academy of Political and Social Science
(AAAPSS) (2005) 12; Jordana and Levi-Faur, ‘Towards a Latin American Regulatory State:
The Diffusion of Autonomous Regulatory Agencies across Countries and Sectors’, 29(4–6)
International Journal of Public Administration (2006) 335; Jordana, Levi-Faur and
Fernández, ‘The Global Diffusion of Regulatory Agencies: Channels of Transfer and Stages
of Diffusion’, 44(10) Comparative Political Studies (2011) 1343; T. Ginsburg and A.H.Y.
Chen, Administrative Law and Governance in Asia: Comparative Perspectives (2009);
Dubash and Morgan, supra note 93; Dubash and Morgan, ‘Understanding the Rise of the
Regulatory State of the South’, 6(3) Regulation and Governance (2012) 261; M. Minogue
and L. Carino (eds), Regulatory Governance in Developing Countries (2006); P. Cook and S.
Mosedale (eds), Regulation, Markets and Poverty (2007); Martínez, Molyneux and
Sánchez-Ancochea, ‘Latin American Capitalism: Economy and Social Policy in Transition’, 38
Economy and Society (2009) 1. 103 See Levi-Faur and Jordana, ‘Regulatory Capitalism:
Policy Irritants and Convergent Divergence’, 598(1) AAAPSS (2006) 191; Dubash,
‘Regulating through the Back Door: Understanding the Implications of Institutional
Transfer’, in Dubash and Morgan, supra note 93, 98, at 100 (‘[t]his is … to buttress the idea
of treating regulatory institutions as a "policy irritant" … that can lead to surprising and
unpredictable outcomes that diverge even across different subnational regulators within
the same country’). Downloaded from
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EJIL 35 (2024), 93–139 Articles more importantly, as a way of capturing its quality as a set
of tools to engender particular kinds of expert reflexivity. These tools are, to paraphrase
Deval Desai, mechanisms self-consciously designed to establish a framework for particular
kinds of expert reflection over the form, content and purpose of regulation.104 This should
not be confused with a claim that they are ideologically unbiased – the point, rather, is to
note their character as reflexive practices that work by creating new and unanticipated
opportunity structures and spaces for mobilization and contestation. This idea of regulatory
policy as an ‘irritant’ chimes well with conceptualizations of regulatory policy produced by
the OECD – one of the key international venues for the formulation, legitimation and
narrativization of regulatory policy. Through the OECD’s work, regulatory policy has
increasingly become allied to the language of dynamism and adaptability. As others have
noted, the initial work of the OECD in the field of regulatory policy had a discernible
pro-market, pro-competition flavour, even if its more obvious ideological overtones had to
be toned down to make it acceptable across the entire OECD membership. Over time,
however, the narrative has evolved, as reflected in a number of distinct shifts of terminology
– first, from ‘regulatory quality’ to ‘regulatory management’, and then, to ‘regulatory
governance’. This linguistic shift explicitly signalled two substantive shifts of focus: away
from the quality of particular regulations towards the adequacy of the overall environment
and institutional structure in which regulations are made and away from an approach that
sees regulatory review and reform as a one-off process to one in which it is understood as a
continuous and dynamic process of reflexive learning and revision.105 Accordingly,
regulatory policy is now presented as a tool for building a systemic capacity for adaptation
and continuous change in regulatory systems, through the routinization of technical,
empirical and incrementalist styles of learning and revision in regulatory processes. This
emphasis is reflected in the key elements that have crystallized as the core of the OECD’s
regulatory policy agenda: adequate public consultation as part of the decision-making
process; the conduct of formal impact assessments of proposed regulatory measures; ex
post review of the effects of regulation; independent regulatory audit; structured
assessments of the costs and benefits of regulation; the use of formalized risk assessment
both in the design of regulation and in the allocation of regulatory resources; and the
pursuit of a variety of mechanisms of regulatory coordination and cooperation both across
government and internationally. I shall return to these developments below. 104 Desai,
‘Reflexive Institutional Reform and the Politics of the Regulatory State of the South’,
Regulation and Governance (2020), available at https://doi.org/10.1111/rego.12336. 105
See, e.g., OECD, Regulatory Cooperation for an Interdependent World (1994); OECD,
Recommendation of the Council on Improving the Quality of Government Regulation, Docs.
OCDE/GD(95)/95, OECD/ LEGAL/0278, 9 March 1995; OECD, Regulatory Policies in OECD
Countries: From Interventionism to Regulator Governance (2002); OECD, Taking Stock of
Regulatory Reform: A Multidisciplinary Synthesis (2005); OECD, Guiding Principles for
Regulatory Quality and Performance, Doc. C(2005)52 and CORR1, (2005); OECD,
Regulatory Policy and the Road to Sustainable Growth (2010); OECD, Recommendation of
the Council on Regulatory Policy and Governance (2012); OECD, OECD Best Practice
Principles for Regulatory Policy: The Governance of Regulators (2014). Downloaded from
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Disordering’ 125 D Expert-Led Harmonization of Market Regulation I turn finally to projects
of international regulatory harmonization. As is well known, the last two decades of the
20th century saw the proliferation at the international level of a variety of expert-led
projects of harmonization of market regulation. Some of these projects took the form of new
model laws or codes developed by international organizations, international professional
associations and regulatory networks. The most famous and well-studied examples of this
sort of project include those in the fields of competition law,106 insolvency law,107
corporate governance108 and intellectual property.109 Others took the form of the
production of sector-specific international regulatory standards – for example, in the fields
of financial services, telecommunications, food safety and health regulation.110 While
some of this work had a much 106 A range of initiatives to develop and promulgate model
competition laws and institutional frameworks have emerged since the 1990s, including a
1993 draft law developed by the Munch Group, a more detailed model law developed by
the United Nations Conference on Trade and Development (UNCTAD) in 2007, with
subsequent revisions, a range of technical assistance initiatives carried out under the
auspices of the UNCTAD, the World Bank and other international organizations and,
significantly, the formation of the inter-regulatory International Competition Network in
2001. For one interesting attempt to interpret this activity specifically in relation to
neo-liberalism, see Turem, ‘“The Market” Unbound: Neoliberalism, Competition Laws and
Post Territoriality’, 19(2) Journal of International Relations and Development (2016) 242.
107 The Asian financial crisis at the conclusion of the 1990s energized efforts to harmonize
insolvency law by international financial institutions (principally the World Bank and the
International Monetary Fund [IMF]), international professional associations (the
International Bar Association and the International Association of Restructuring, Insolvency
and Bankruptcy Professionals) as well as international bodies such as the OECD and the
United Nations Commission on International Trade Law (UNCITRAL). See generally T.
Halliday and B. Carruthers, Bankrupt: Global Lawmaking and Systemic Financial Crisis
(2009), especially ch. 3. 108 The same period precipitated similar developments in the field
of corporate governance by such bodies as the IMF, the OECD, the World Bank, UNCITRAL
and the International Corporate Governance Network, which produced a variety of
corporate governance codes, principles and legal models, alongside mechanisms for
monitoring and supervision as well as the Global Corporate Governance Forum. For a good
summary of these efforts, see Parglender, ‘The Rise of International Corporate Law’, 98
Washington University Law Review (2021) 1765; Gordon, ‘Convergence and Persistence in
Corporate Law and Governance’, in J.N. Gordon and W-G. Ringe (eds), Oxford Handbook of
Corporate Law and Governance (2018) 28. For an important earlier generation of work, see,
e.g., Zumbansen, ‘The Privatization of Corporate Law: Corporate Governance Codes and
Commercial Self-Regulation’, 3(2) Juridikum (2002) 32; Branson, ‘The Very Uncertain
Prospect of “Global” Convergence in Corporate Governance’, 34(2) CILJ (2001) 321; and
Stephan, ‘The Futility of Unification and Harmonization in International Commercial Law’,
39 Virginia Journal of International Law (1999) 743. 109 Probably the most important
development in the key period of the early 1990s was the WTO’s Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) 1994, 1869
UNTS 299. For a different reinterpretation of the classic harmonization story in intellectual
property as instead a story of ‘maximization’, see Wasserman Rajec, ‘The Harmonization
Myth in International Intellectual Property Law’, 62 Arizona Law Review (2020) 735. 110
Key institutions in these sectors include the Codex Alimentarius Commission, the World
Organization for Animal Health, and the International Plant Protection Convention, the
Basel Committee on Banking Supervision, the International Organization of Securities
Commissions, and the International Association of Insurance Supervisors, the International
Telecommunications Union and the World Health Organization. Downloaded from
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EJIL 35 (2024), 93–139 Articles longer history, in general, projects of international
regulatory standardization have rapidly accelerated and proliferated since the late 1980s.
For the most part, the work of harmonization has relied heavily on expert work –
specifically, the construction and consolidation of transnational expert consensus in and of
international organizations and networks. The outcomes of this work of expert consensus
building are mixed legal-technical artefacts: guiding principles, best practices, model laws,
recommendations and similar voluntary normative instruments. They are, as a rule,
non-binding, even constitutively so. As such, they are implemented by way of an elaborate
international infrastructure of monitoring and supervision, technical assistance, spaces for
sharing experience and best practice as well as processes of cross-jurisdictional mutual
review and challenge. Notwithstanding the non-binding quality of such standards, there
have been a number of attempts to leverage other elements of international economic
governance to give these standards a binding quality. IMF and World Bank conditionality,
for example, has at times been enlisted in the service of particular projects of regulatory
harmonization, especially around the late 1990s and early 2000s.111 Moreover, obligations
to use international standards have been incorporated into a number of trade agreements.
The WTO’s SPS and TBT Agreements require WTO members to use harmonized
international standards in certain circumstances – a very significant legal development at
the time, though one that has over time probably proved to have less bite than was initially
thought.112 For its part, the TRIPS Agreement represents an unusually high watermark of
harmonization in the field of intellectual property, while the General Agreement on Trade in
Services’ telecommunication reference paper distils certain common principles of
pro-competitive telecommunications regulation into a document with (indirectly) binding
legal effect.113 A range of recent bilateral trade treaties include provisions promoting
harmonization and, sometimes, the establishment of broadly defined minimum regulatory
floors, in a number of the areas listed above. Evidently, this architecture of international
standardization sits very comfortably within a vision of neo-liberal global economic
governance as a substantive and programmatic straitjacket disciplining unruly regulatory
divergence through the production and dissemination of expert-defined regulatory
orthodoxies. But I want to argue here that international standardization also works, in two
distinct ways, as a technology for reflexivizing the regulatory process, in the sense used in
this article. First of all, there is an important sense in which projects of international
regulatory standardization enable and support a larger order of inter-jurisdictional
regulatory competition, even as they appear to constrain it by promoting regulatory
convergence. This looks paradoxical but, in fact, the logic is straightforward. Any system of
interjurisdictional competition of the sort described in section 3.A will, sooner or later, lead
111 See, e.g., Parglender, supra note 107, at 1779–1780; Soederberg, ‘The Promotion of
‘Anglo-American Corporate Governance in the South: Who Benefits from the New
International Standard?’, 24 TWQ (2003) 7. 112 SPS Agreement, supra note 99. For one
account of this trajectory, see Howse and Langille, supra note 16, especially section F. 113
TRIPS Agreement, supra note 109; General Agreement on Trade in Services, 1869 UNTS
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30 October 2024 ‘Global Disordering’ 127 to forms of regulatory competition and
associated practices of regulatory arbitrage, which appear harmful to at least some
participants. As a result, demand arises for new rules to determine the boundary between
acceptable and harmful forms of inter-jurisdictional competition – a shift in the current
‘ground rules’ that form the basis of the existing order of inter-jurisdictional competition. A
significant part of the work of international standardization is best understood as a
response to precisely this demand. The Basel Committee’s rules on capital adequacy
requirements in the sphere of banking regulation are a good illustration: they do indeed
promote regulatory convergence and limit regulatory arbitrage, but they do so in the service
of a larger project of global financial sector integration that encourages and promotes other
kinds of regulatory competition. Ongoing efforts to develop international standards on
anti-base erosion and profit shifting to address tax avoidance and base erosion are another
example – that is to say, an attempt to distinguish between harmful and acceptable forms
of tax competition and tax arbitrage, with a view to limiting one and facilitating the other.
International standards, then, do limit inter-jurisdictional competition in some ways, but
they enable it in others and, in that sense, are properly seen not as instruments of
regulatory convergence tout court but, rather, as part of a larger architecture of governance
that sets the guardrails and ground rules for an inter-jurisdictional competitive order in
which states are subjects. Second, it is important to recognize that a large proportion of
international standardization activity produces what we might call ‘second-order’ artefacts.
By this term, I simply mean that they are directed less at the substantive content of
regulation and more at second-order questions of how regulatory decisions are made or
what general characteristics these regulatory systems ought to have. Some international
standards, for example, take the form of checklists of issues to be considered in the course
of particular kinds of regulatory decision-making. An illustration would be the OECD’s early
Reference Checklist for Regulatory Decision-Making, which sets out a series of generic
questions that regulators should ask themselves;114 a more specific illustration would be
the work of the Codex Alimentarius Commission in setting out some of the issues that food
safety regulators ought to consider when conducting equivalence assessments.115 Other
international standards focus on setting out regulatory processes or agreed
decision-making protocols, such as the Codex’s guidelines for the conduct of risk
assessment116 or standards regarding best practice in impact 114 OECD,
Recommendation of the Council on Improving the Quality of Government Regulation, Docs
OCDE/GD(95)/95, OECD/LEGAL/0278, 9 March 1995; see also OECD, APEC-OECD
Integrated Checklist on Regulatory Reform: A Policy Instrument for Regulatory Quality,
Competition Policy and Market Openness (2005). 115 Codex Alimentarius Commission,
Guidelines for the Development of Equivalence Agreements Regarding Food Imports and
Export Inspection and Certification Systems, Doc. CAC/GL 34–1999 (1999); see also more
recently Codex Alimentarius Commission, Proposed Draft Consolidated Codex Guidelines
Related to Equivalence, Doc. CX/FICS 20/25/7, February 2020. 116 See, e.g., Codex
Alimentarius Commission, Working Principles for Risk Analysis for Food Safety for
Application by Governments, Doc. CXG 62-2007 (2007); Codex Alimentarius Commission,
Principles and Guidelines for the Conduct of Microbiological Risk Assessment, Doc. CXG
30-1999 (1999; amended 2012, 2014). Downloaded from
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EJIL 35 (2024), 93–139 Articles assessment.117 Still others address the general
characteristics of good-quality regulatory systems and set out broad ‘meta-principles’ of
good regulatory practice that they ought to follow. Illustrations include the International
Organization of Securities Commissions’ Objectives and Principles of Securities
Regulation,118 or the Codex’s Guidelines for Food Import Control Systems,119 or even the
principles of ‘good regulatory practice’ contained in recent free trade agreements. And some
international standards take the form of templates, with empty areas to be completed,
alternative options to be considered and wide variation at the level of implementation left
open. Even a document as apparently prescriptive as the United Nations Conference on
Trade and Development’s Model Law on Competition illustrates this modality, in its
combination of generally drafted model provisions, combined with commentaries that
illustrate alternative approaches to interpretation and implementation at the national
level.120 There are many reasons why second-order artefacts are so prevalent in the world
of international standardization, but one of them has to do with the nature of
consensus-building in an expert context. Although different standards-setting bodies use
different decision-making procedures, essentially all are deeply technoscientific in nature:
expert working groups are typically central to the process; deliberation takes place largely
in a technical idiom; decision-making usually cannot proceed in the absence of expert
consensus; and the legitimacy of international standards depends heavily and explicitly on
their technical quality.121 But the practice of generating ‘technical consensus’ only
sometimes involves agreement in the sense of eliminating differences of opinion and
approach. It also involves bracketing and deferring differences and treating still others as
matters of implementation or legitimate choice. The construction of expert consensus, in
other words, is often a process of selectively setting differences to one side, avoiding or
deferring hard choices or deploying techniques for making certain differences irrelevant or
less salient rather than resolving or 117 See, for example, the wide range of international
standards on impact assessment promulgated by the International Organization for
Standardization and even the standards set out by the International Association for Impact
Assessment, available at www.iaia.org/index.php, which defines itself as a ‘global network
on best practice’ in impact assessment. 118 IOSCO, ‘Objectives and Principles of Securities
Regulation’, May 2017, available at www.iosco.org/library/pubdocs/pdf/IOSCOPD561.pdf.
119 Codex Alimentarius Commission, Guidelines for National Food Control Systems, Doc.
CXG 82-2013 (2013); Codex Alimentarius Commission, Principles for Food Import and
Export Inspection and Certification, Doc. CAC/GL 20-1995 (1995); Codex Alimentarius
Commission, Guidelines for the Design, Operation, Assessment and Accreditation of Food
Import and Export Inspection and Certification Systems, Doc. CAC/GL 26-1997 (1997). 120
See, e.g., the recently revised Chapter IV in United Nations Conference on Trade and
Development, Model Law on Competition (2020), revised Chapter IV, Doc.
TD/RBP/Conf.9/L.2, 18 September 2020. 121 On international standard-setting as a
self-consciously techno-scientific mode of governance, see generally Winickoff and Bushey,
‘Science and Power in Global Food Regulation: The Rise of the Codex Alimentarius
Commission’, 35(3) Science, Technology and Human Values (2009) 356; Jukes, ‘The Role of
Science in International Food Standards’, 11(3) Food Control (2000) 181; T. Buthe and W.
Mattli, The New Global Rulers: The Privatization of Regulation in the World Economy
(2011). Downloaded from https://academic.oup.com/ejil/article/35/1/93/7632077 by guest
on 30 October 2024 ‘Global Disordering’ 129 overcoming differences. Such processes are
particularly conducive to the production of second-order standards. For some observers,
the second-order quality of many international standards is a sign of their weakness –
second-order standards, after all, allow for significant variability at the level of
implementation and sometimes do very little to promote substantive convergence. This is
true, but it misses another point – namely, that these sorts of artefacts are designed to do
different kinds of work on regulators and regulatory systems: not (just) the work of
convergence but (also) the work of reflexivizing the regulatory process. Tailorable
templates do indeed provide guidance, but they also specifically enable and encourage
consideration of, and adaptation to, local circumstances and conditions. Common
procedures (such as risk assessment protocols) help to facilitate mutual intelligibility and
scrutiny between regulatory systems, providing a basis on which to distinguish ‘credible’
from ‘unreliable’ decisions and systems. Checklists encourage self-evaluation on the part of
regulators. General principles of good regulatory practice enable discursive processes of
justification, reflection and negotiation as different stakeholders argue over the conformity
of this or that aspect of domestic regulatory systems with international standards.
International architectures for peer review and international oversight that often accompany
international regulatory standards enable mutual scrutiny across regulatory jurisdictions.
Even the non-binding quality of standards in itself can be said to promote reasoned
decision-making above all, given that it provides for the possibility of justified departure as
much as rigorous conformity. Whether it is through processes of international monitoring,
peer review or even dispute settlement, international standards are often used as reference
points for reflexive self-evaluation by regulators, who must either explain how they are in
conformity with such standards or justify their departure from them.122 Against this
backdrop, then, I suggest that the nature and dynamics of international standardization are
not fully captured by the common-sense imaginary in which dominant regulatory models
orientated around the construction of maximally competitive markets are globally
disseminated. Instead, international standardization can also be productively understood as
a technique for embedding regulatory systems within specific cultures and practices of
expert reflexivity123 and as another technology through which regulatory decision-making
is reconstituted as a technical and reflexive practice – with significant and complex
consequences for the evolving distribution, purposes, limits, modalities and targets of
regulatory power. 122 On the central place of reasoned justification for departure from
international standards in even the most prescriptive aspects of the regime of international
standards, see SPS Agreement, supra note 99, Art. 3; TBT Agreement, supra note 84, Art.
2.4, and the jurisprudence under them. 123 For another argument in which international
standardization works in a reflexive mode, see Dunn, ‘Standards and Person-Making in East
Central Europe’, in Collier and Ong, supra note 8, 173; Strathern, ‘Robust Knowledge and
Fragile Futures’, in Collier and Ong, supra note 8, 464. Downloaded from
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EJIL 35 (2024), 93–139 Articles 4 Contemporary Transformations The main thrust of the
argument so far, then, is this. Neo-liberalization, conceived as an ongoing historical process
of desacralizing the post-war social state, set in train two related but distinct dynamics of
state transformation. First, it was connected with the reorientation of government around
the problematic of competitive order: how, in other words, to create the right institutional
conditions and ‘ground rules’ for wellfunctioning competitive (market) order? Second, it was
connected with the reconstruction of the state as a subject of competitive order: this is the
state as a reflexive, dynamic, competitive and entrepreneurial actor. These two impulses –
sometimes contradictory, sometimes convergent – have helped to generate the
heterogenous mix of state formations that currently characterizes the global order. At the
risk of reductionism, we can say that the institutional impulse has produced a diverse family
of hybridized market formations, recognizably related but without a single institutional core.
The reflexivizing impulse, for its part, has largely manifested in two concrete developments:
first, the integration of specific regulatory decision-making routines oriented towards
regulatory optimization and incremental learning and, second, the generation and
deployment of new domains of reflexive state expertise as a way of challenging existing
practice, prompting critical self-reflection and thereby promoting competitive innovation. I
said at the outset of this article that my aim in offering this rereading of neo-liberal global
economic governance is, ultimately, to provide analytical purchase on the contemporary
‘post-neo-liberal’ moment. In this section, then, I turn to the question of how this
reinterpretation of the past helps us to understand the present. Usually, the idea that we
are entering a ‘post-neo-liberal’ order is accompanied by a claim that neo-liberal policy
orthodoxies have lost their appeal. Prevailing ideas about appropriate state-market
relations are changing, and state forms are in the process of changing with them. The
precise nature of these changes is still unclear – and, indeed, up for grabs – but, at some
general level, they involve a much greater acceptance of an active role for the state in
enabling and steering the green transition, in midwifing disruptive innovations associated
with the fourth industrial revolution and in ensuring the ‘geo-economic security’ of
populations and their vulnerability to various forms of externally induced economic coercion
and shocks. There is no question that such shifts are indeed underway. For example, a
number of global developments – instances of economic coercion, the Russian war on
Ukraine, post-pandemic disruptions to supply chains – have convinced key states that the
risks to critical supply chains associated with economic integration are too great to ignore.
Both the USA and the EU are actively working to promote the ‘resilience’ of their supply
chains and seeking to shape investment (and disinvestment) decisions in ways that will
likely radically transform the existing geography of transnational production. The tools they
are using to do so – export restraints, subsidies, measures to limit technology transfer, strict
investment screening, ‘friend-shoring’ more generally – are precisely those that fell from
favour during the neo-liberal period. For another thing, the twin challenges of the climate
crisis and the latest digital revolution have also Downloaded from
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Disordering’ 131 eroded confidence in existing economic models. The non-interventionist
conceptions of the role of the state that underpinned the neo-liberal order appear
inadequate in the face of such challenges, and states are increasingly adopting measures –
immense governmental assistance programmes and the active promotion of competitive
subsidization – that at least constitute a turn away from that order. Finally, these
developments have been accompanied by a larger and more general ideological transition
in a number of key states, combining a pendulum swing away from 1990s-style economic
liberalism in certain major states with a newly powerful public scepticism (on both left and
right) of the economic orthodoxies that underpinned the early decades of economic
globalization. If, as is commonly argued, the global financial crisis brought with it a general
loss of faith in neo-liberal models, perhaps we are only now seeing this loss of faith
translated in alternative institutional arrangements and policies. The shifts are at the same
time generating contestation at the international level as a variety of actors seek to reshape
global economic governance in light of these shifts. What we are seeing at the level of
global economic governance, then, is the early stages of the negotiation of new ground
rules for global competition, including new ways of drawing the boundaries between
legitimate and illegitimate state action, based on new and emergent state formations and
associated interests and ideologies. Anne Orford captures and explains this dynamic with
clarity: ‘[T]he struggle for what counts as the normal relation between state and market
has been at the heart of trade disputes and negotiations for at least the past century’, and
the system of international economic law has ‘functioned to embed and transmit ideas
about the proper relation between state and market’. We are now in a period, she notes, in
which ‘normal’ is again up for grabs, and a variety of actors are opening up spaces to offer
new frameworks to ‘differentiate legitimate from illegitimate interventions in the market’
and to encode them in institutions and structures of global economic governance.124 The
current period, then, is structurally similar to the period at the end of the 20th century when
the ‘normal’ of the social welfare state lost its purchase and the USA, alongside other key
actors at the time, sought to entrench their particular models of state regulation and
theories of statecraft into the new architecture of international economic law and
governance. All this sounds right. But building on the argument set out above, I want to
suggest that contemporary developments are suggestive of a second, additional, dimension
of change – namely, a change in the characteristic techniques, objectives and targets of
reflexivization characteristic of the neo-liberal period. If the account set out in section 2 is
right, the emergence of neo-liberalism signalled the erosion of the ‘self-evidence’ of the
social as the zone, target and objective of government.125 For neo-liberal thinkers, the core
problem of the social state was its pretension to speak unproblematically on behalf of a
mystified ‘social’. Neo-liberalization was a process in which the claim of the social state to
speak on behalf of the social body, to be animated by socially shared values and to promote
the cohesion and health of the social 124 Orford, supra note 14, at 66, 70. 125 Collier,
‘Second Thoughts’, supra note 8, referring to Rose, ‘Death of the Social’, supra note 38.
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October 2024 132 EJIL 35 (2024), 93–139 Articles body was subject to sceptical
re-evaluation and lost credibility. Neo-liberalization, on this reading, was a process of
reflexivizing the social – that is to say, institutionalizing practices of self-critical reflexivity in
forms of government based on a social principle – and it offered up the competitive process
as an alternative principle of government that displaced the question of collective value.
What we are seeing now, I suggest, is a second iteration of this dynamic but with the
competitive order as its new target. It is now the self-evidence of competitive ordering itself
that is being eroded as an organizing principle of government. If claims to speak on behalf
of the social were always at some level mystifications, it is equally true that political
projects to build the institutional foundations of competitive order rest on similarly shaky
mystifications: specific and often not explicitly justified value choices about the kind of
competitive order that is desirable, the proper terms and conditions of competition, the
boundaries and limits of competitive dynamics and so on. In this second iteration, then, new
and repurposed techniques of reflexivization are turned not upon the (no longer
recognizable) social state but, rather, upon the idea and architecture of competitive order
itself. This translates into an imperative always to keep the institutional form of competitive
order in play, in question and under construction and self-consciously to establish forms
that allow for easy reconfiguration. It is beyond the scope of this article to offer an account
of the complex causes, and historical drivers, of this shift. But it is worth noting that
precisely the same events that are cited as driving these changes in the institutional story,
noted above, are directly relevant here. The rise of the Chinese ‘state capitalism’, as well as
the proliferation of hybrid market forms more generally, has not only eroded US hegemony
but also relativized the specific institutional form of US-style market capitalism. Both the
climate crisis and new geo-political frictions, for their part, have provided exogenous
(material, ecological) grounds for evaluating the adequacy of this or that competitive
market order. The race for supremacy in frontier digital technologies has drawn new
attention to the different kinds of competition that may be generated by different
competitive orders and valorized new conceptions of ‘disruptive innovation’ as the
cornerstone of innovation and competitiveness. The point is simply that the range of
contemporary challenges we now face not only exposes the weaknesses of particular
policy programmes and orthodox institutional configurations but also more deeply exposes
the value choices that are necessarily made in the construction of any competitive order.126
Competitive order, then, no longer serves as a viable principle for displacing questions of
social value, or at least not without some retooling. This retooling is emergent, and all I can
do here is offer one suggestive description of what it might mean, in concrete terms, to
‘reflexivize’ competitive ordering as a provocation to further reflection and refinement. At
the national level, a series of 126 To elaborate just a little: it is evidently impossible to
construct competitive orders without making choices regarding the appropriate conditions
of competition, establishing the shared ‘rules of the game’, distinguishing between harmful
and beneficial competition and identifying the proper boundaries between competitive and
other forms of social ordering. The mere notion of ‘competitive order’ does not contain its
own answers to this question, and, in practice, they are mostly answered by implicit
reference to a specific (and contestable) normative framework. Downloaded from
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Disordering’ 133 global shocks and crises have brought into sharp relief a number of
weaknesses in the governance capacities of the regulatory state and helped to frame new
objectives for the deployment of state regulatory power. If the regulatory state was, at
some foundational level, orientated towards the creation of the right institutional
foundations of competitive markets, there is an increasing recognition that more targeted
regulatory action may be needed to build the capacity within economic systems to both
withstand and adapt to shocks. This is visible within a newly prominent discourse on
regulatory ‘agility’ and ‘resilience’, which focuses on the establishment of agile governance
frameworks for domestic markets, both as a way of ensuring their resilience to external
shocks and also as a way of enabling and accommodating the sorts of disruptive
innovations which are increasingly understood as the source of competitive advantage in a
rapidly changing economic and technological environment.127 While aspirations to ‘agility’,
‘flexibility’ and ‘resilience’ have in some manner been staples of regulatory policy for
decades, they are beginning to be associated with a somewhat recast set of objectives and
priorities. This is reflected prominently, for example, in the OECD’s work in this area, which
has begun centrally to emphasize the need for ‘agile regulatory governance’ as a way of
responding to contemporary global challenges, including climate change and digital
transformations.128 Its paradigm of regulatory agility emphasizes the need for regulators
to build ‘flexible and adaptive regulatory frameworks’ to actively promote
innovation-friendly environments and enhance ‘systemic resilience’.129 An example of the
former would be the relatively recent innovation of the regulatory ‘sandbox’, which
represents a means of promoting innovation through the establishment of localized,
provisional and experimental prototype regulatory regimes in which new approaches can
be tested in controlled environments. The paradigmatic example of the latter is the
emergence of a new set of regulatory initiatives designed to promote supply chain
resilience, not just through the promotion of domestic production but also, more
importantly, through the creation of a variety of new mixed public-private mechanisms for
monitoring supply chain risks and vulnerabilities and new arrangements to facilitate firms
rapidly shifting between sources of supply as needed.130 What seems to be at stake, then,
in these specific usages of ‘agility’ and ‘resilience’ is a somewhat recast role for the
regulatory state: less the establishment of optimal ground rules for a well-functioning
competitive order and more the facilitation of (radical) innovation and (disruptive)
competition through ongoing regulatory experimentation and differentiation at the level of
those ground 127 For illustrative products of this discursive environment, see the Agile
Nations Charter, agreed 18 September 2021, available at
www.gov.uk/government/publications/agile-nations-charter/agilenations-charter-accessible
-webpage-version; see also World Economic Forum, ‘Toolkit for Regulators’ entitled ‘Agile
Regulation for the Fourth Industrial Revolution’, available at www3.weforum.org/docs/
WEF_Agile_Regulation_for_the_Fourth_Industrial_Revolution_2020.pdf. 128 OECD,
Recommendation of the Council for Agile Regulatory Governance to Harness Innovation,
Doc. OECD/LEGAL/0464, 6 October 2021. 129 Ibid. 130 See Indo-Pacific Economic
Framework for Prosperity Agreement Relating to Supply Chain Resilience, available at
www.commerce.gov/sites/default/files/2023-09/2023-09-07-IPEF-Pillar-II-Final-TextPubli
c-Release.pdf. Downloaded from https://academic.oup.com/ejil/article/35/1/93/7632077 by
guest on 30 October 2024 134 EJIL 35 (2024), 93–139 Articles rules as well as the
orchestration of a form of resilience based on the rapid adaptation of economic
arrangements in response to unexpected shocks. These shifts are mirrored in a parallel set
of changes at the international level as the need to promote domestic resilience and agility
gives rise to a demand for frameworks of international cooperation, which are themselves
flexible and dynamic. It also entails a shift of sorts, away from a conception of global
economic governance as establishing fixed and universal ground rules for a global order of
free and fair conditions of competition, towards a conception in which such conditions of
competition are increasingly adaptable in light of changing conditions, shocks or unforeseen
developments. Thus, for example, within the specific context of trade governance, we are
beginning to see experimentation with new, more dynamic legal forms to take the place of
the free trade agreement. Traditional trade treaties, especially multilateral treaties, have
long been criticized as excessively rigid: too hard to change with existing consensus-based
decision-making; too quickly out of date in a rapidly changing world; and unable to respond
flexibly to major shocks and disruptions. The slow and rule-bound machinery of formal
treaty-based adjudication is similarly criticized as non-responsive or not suitable for a world
in which rapid technological and economic change demands constant policy
experimentation and rapid cycles of governance innovation. In this context, former US Trade
Representative Robert Zoellick has called for new forms of economic diplomacy, which
‘aim[] to achieve resilience and foster adaptation’, while the WTO itself has called for more
attention to the need to strengthen the resilience of both trade governance and the trading
system.131 As a result, a number of major trading powers – most notably, the USA – have
begun to negotiate new more flexible structures for economic cooperation beyond formally
binding trade treaties. One of the best examples is the US-led Indo-Pacific Economic
Framework, formally launched in mid-2022 and billed as a new type of flexible and open
economic arrangement. It is an arrangement built around institutional structures for
ongoing cooperation as well as shared high-ambition regulatory standards and
interoperable regulatory frameworks, but it de-emphasizes legally binding treatybased
liberalization commitments. Its recently concluded supply chain agreement is said to be
‘designed to enable IPEF [Indo-Pacific Economic Framework for Prosperity] partners to work
together collaboratively to make supply chains more resilient, efficient, transparent,
diversified, secure, and inclusive, including through information exchange, sharing of best
practices, business matchmaking, collective response to disruptions, and supporting labor
rights’.132 Another example is the EU-US Trade and Technology Council, a framework for
transatlantic cooperation on rules around new technologies, established in June 2021.
Other initiatives – still nascent but under consideration – have a suggestively similar
orientation. The proposed transatlantic Global Arrangement on Sustainable Steel and
Aluminium, for example, which has been under development since 2021, is an initiative
designed to facilitate trade in 131 Zoellick, ‘Before the Next Shock: How America Can Build
a More Adaptive Global Economy’, 101(2) Foreign Affairs (2022) 86; WTO, World Trade
Report 2021: Economic Resilience and Trade (2021), especially section D. 132 See note
129. Downloaded from https://academic.oup.com/ejil/article/35/1/93/7632077 by guest on
30 October 2024 ‘Global Disordering’ 135 sustainable steel products, again built on a
flexible foundation of aligned standards and compatible regulatory systems amongst its
partners. And the Group of Seven’s Climate Club, launched in late 2022, is another initiative
with similar features – an arrangement designed in part to foster new markets in green
productions technologies and products, open to members with shared regulatory
ambitions. Also illustrative in this context is the recent Australia-Singapore Green Economy
Agreement, which foreshadows the construction of dynamic and evolving alliances around
high-ambition and compatible regulatory frameworks in the context of the green transition.
Closely related, free trade agreements themselves have undergone significant evolution in
a similar direction. The latest generation of free trade agreements are consciously being
designed as more dynamic agreements, increasingly focusing on establishing frameworks
for ongoing negotiation and cooperation on issues as they arise. One way that this has been
happening has been through the incorporation of ‘rebalancing’ mechanisms, which have
begun to play a more central role in the trade policy of both the USA and the EU.133 These
are mechanisms according to which the terms of mutual market access established under
trade agreements can be adjusted (‘rebalanced’) as conditions change in specified ways –
for example, as regulatory standards diverge, new competitive distortions are introduced or
new national security interests develop. But probably the best illustration is the new
emphasis that has been given to regulatory cooperation within trade agreements over the
last decade or so.134 Trade treaties now routinely provide an infrastructure for routinized
cooperation and collaboration between regulators across jurisdictions. Such cooperation
can 133 I have in mind here, for example, rebalancing mechanisms such as that contained in
Chapter 3 of Title XI (level playing field) of the UK-EU Trade and Cooperation Agreement as
well as the USA’s new emphasis on rebalancing as a mechanism for solving national
security-related (and perhaps other) disputes in the WTO. See, e.g., Statements by the
United States at the Meeting of the WTO Dispute Settlement Body, 27 January 2023,
section 6, available at https://ustr.gov/about-us/policy-offices/press-office/
press-releases/2023/january/statements-united-states-meeting-wto-dispute-settlement-b
ody. 134 A large literature on this important development has emerged since the early
2010s. See, e.g., Steger, ‘Institutions for Regulatory Cooperation in “New Generation”
Economic and Trade Agreements’, 38(4) Legal Issues of Economic Integration (2012) 109;
Bollyky, ‘Regulatory Coherence in the TPP Talks’, in C.L. Lim, D. Elms and P. Low (eds), The
Trans-Pacific Partnership: A Quest for a Twenty-First Century Trade Agreement (2012)
171; Mumford, ‘Regulatory Coherence: Blending Trade and Regulatory Policy’, 10(4) Policy
Quarterly (2014) 3; Alemanno, ‘The Regulatory Cooperation Chapter of Transatlantic Trade
and Investment Partnership: Institutional Structures and Democratic Consequences’, 18 JIEL
(2015) 625; Marks, ‘The Right to Regulate (Cooperatively)’, 38 University of Pennsylvania
Journal of International Law (UPJIL) (2016) 1; Wiener and Alemanno, ‘The Future of
International Regulatory Cooperation: TTIP as a Learning Process toward a Global Policy
Laboratory’, 78 Law and Contemporary Problems (LCP) (2015) 103; Bull et al., ‘New
Approaches to Regulatory Cooperation: The Challenge of TTIP, TPP, and Megaregional
Trade Agreements’, 78 LCP (2015) 1; Polanco Lazo and Sauve, ‘The Treatment of
Regulatory Convergence in Preferential Trade Agreements’, 17(4) World Trade Review
(2018) 575; Mertenskotter and Stewart, ‘Remote Control: Treaty Requirements for
Regulatory Procedures’, 104 Cornell Law Review (2019) 165; Liu and Lin, ‘The Emergence
of Global Regulatory Coherence: A Thorny Embrace for China?’, 40(1) UPJIL (2018) 133;
Kauffmann, ‘Adapting Regulation to Globalization: A Typology of Approaches to the
Internationalization of Regulation’, in E. Brousseau, J.-M. Glachant and J. Sgard (eds),
Institutions of International Economic Governance and Market Regulation (2020); Hale,
‘Regulatory Cooperation in North America: Diplomacy Navigating Asymmetries’, 49(1)
American Review of Canadian Studies (2019) 123; Hoekman and Sabel, ‘In a World of
Value Chains: What Space for Downloaded from
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EJIL 35 (2024), 93–139 Articles take many forms, but special attention is paid to
recognition and equivalence arrangements, which can promote the cross-jurisdictional
interoperability of regulatory systems.135 In addition, trade deals are now often
accompanied by various forms of side instruments relating to regulatory matters – from
data adequacy determinations, to food safety equivalence decision, to cooperation on
banking and financial regulation. While there are many reasons for these developments,
they are noteworthy in this context for their legal modalities: regulatory arrangements of
this type are highly tailorable to different countries, provisional and revisable, adaptable to
new conditions, responsive to novel risks and instabilities and relatively rapidly negotiated
(at least compared to treaties).136 Finally, there are potential shifts at the level of
techniques and practices of reflexivization. In section 3, I noted that the practices of
reflexivity characteristic of neoliberal economic governance were those oriented towards
regulatory learning and optimization – expert peer review, routinized impact assessment,
international judicial processes of rational-sceptical review, measurement and ranking of
governance quality. There is an emerging literature on recent developments within the
work of international economic institutions which experiment with alternative forms of
reflexivity. Desai, for example, describes new styles of reflexive development practice that
self-consciously establish ‘framework[s] for political contests over the form and content of
regulation’ and ‘explicitly disclaim[] any predetermined content’ of the process of
institutional reform.137 Fleur Johns and others have explored recent experiments with the
use of the organizational form of the ‘policy lab’ in international development practice,
connecting it with a new style of hyper-reflexive governance built around the iterative
development of prototype governance technologies.138 Others describe a turning inwards
of practices of reflexivity and their embedding within international economic institutions
themselves. Dimitri Van den Meerssche, for example, has described in some detail the ways
in which reflexive techniques of management and decision-making associated with the
neo-liberal regulatory state – especially the deformalized managerial technology of risk
management – were turned inward on the World Bank itself in ways that self-consciously
and explicitly unsettled prevailing interpretations of the bank’s limited mandate.139 In this
context, it is also worth Regulatory Coherence and Cooperation in Trade Agreements’, in B.
Kingsbury et al. (eds), Megaregulation Contested: Global Economic Ordering after TPP
(2019) 217; P. Mavroidis, Regulatory Cooperation: Lessons from the WTO and the World
Trade Regime, E15 Task Force on Regulatory Systems Coherence – Policy Options Paper,
E15 Initiative, International Centre for Trade and Sustainable Development (ICTSD) and
World Economic Forum (2016). 135 See, e.g., OECD, Recommendation of the Council on
International Regulatory Co-operation to Tackle Global Challenges, Doc.
OECD/LEGAL/0475, 10 June 2022, s. III.3.b. 136 For a survey of these developments and
their significance, see, e.g., Lang, ‘Global Governance of Regulatory Deference’, European
Journal of Risk Regulation (forthcoming). 137 Desai, supra note 103; see also D. Desai,
Expert Ignorance: The Law and Politics of Rule of Law Reform (2023). 138 Johns, ‘From
Planning to Prototypes: New Ways of Seeing Like a State’, 82(5) Modern Law Review
(2019) 833; see also the special issue on ‘New Ways of Seeing Like a State – Change,
Critique and Complicity in Global Governance’, 33(3) Law and Critique (2022). 139 D. Van
den Meerssche, The World Bank’s Lawyers: The Life of International Law as Institutional
Practice (2022). Downloaded from https://academic.oup.com/ejil/article/35/1/93/7632077
by guest on 30 October 2024 ‘Global Disordering’ 137 noting ongoing efforts to embed
practices of reflexivity within those international organizations and spaces engaged in
making international regulatory standards.140 Evidently, each of these developments has
its own complex history and politics, which cannot be reduced to a single logic. My aim here
is not to provide an explanation of the causes of these developments nor of the specific
constellations of actors and interests that are driving it: it will be clear, I hope, that I am not
even sure that a system-level explanation is possible. Instead, my aim is to provide an
account of the character of contemporary transformations, and, at this level, it seems to me
that, in combination, these examples suggest something important about the current
moment. In each of these domains, we are seeing an internalization of reflexive principles at
the level of global economic governance itself, as the institutional underpinnings of global
competition (global markets as well as interstate competition) are themselves made
adaptive, dynamic, mutable and, in some sense, provisional. All of them reflect a sense that
practising global governance itself entails not only designing and promoting reflexive
practices for others but also direct participation in them. They reflect the idea that part of
the proper role of global governance is to establish the conditions for its own iterative
reconstitution in the context of evolving global problems, even to the extent of continually
reopening the possibility of rupture. All can be understood as the sorts of practices and
forms that emerge when neo-liberal techniques are reoriented and redeployed to do their
work of reflexivization on a new target – namely, the institutions of global economic
governance itself. It may be useful to think of this in terms of the recomposability of
competitive (market) order. If the quasi-constitutional architecture of global economic
governance was conceived, in the neo-liberal imagination, as the solid foundation on which
competitive ordering was built and from which reflexive economic statecraft emerged, now
it is that quasi-constitutional architecture that is imagined as problematically rigid and that
needs to be made more reflexive, adaptable, dynamic and resilient. If the idea of the ‘social’
required desacralization then, now it is the mystified notion of ‘competition’ that is being
subject to the same treatment. Thus, practices and structures of global economic
governance are themselves being subject to the dynamics of proceduralized self-reflection,
provisionality, revisability and adaptability, with the aim of producing a competitive order
that is itself self-consciously mobile and adaptable even at the level of its structural
foundations. Thus, techniques of regulatory governance are (among other things) oriented
towards the production of competitive orders that have the feature of ‘recomposability’ both
in the sense that condition of competition can be readily modified as conditions change and
in the sense of encouraging and maintaining an endogenous capacity for disruptive change.
140 See, most recently, OECD, supra note 135, s. III.3.e. Downloaded from
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EJIL 35 (2024), 93–139 Articles 5 Conclusion My suggestion in this article has been that
many international lawyers may need to revisit their understanding of the nature of the late
20th-century neo-liberal transformation of global economic governance. I have offered a
reinterpretation of that period, in which neo-liberalization is understood in this context as
the historically specific deployment of a set of critical technologies for desacralizing the
social state by reference to competitive ordering. These technologies have helped to
reconstitute the state as a reflexive and entrepreneurial subject of competitive order and
embed it within a reflexivized set of regulatory cultures and expert practices. This
interpretation is offered as a complement to the more prevalent programmatic
interpretation in which the neo-liberal is understood as a model of state-market relations
and global economic governance functions to normalize and propagate that model. My
argument, in other words, is for an interpretation of neo-liberalization that takes account of
both its institutional character and its character as a set of techniques of reflexivization as
well as the relation between them. This provides us with a more adequate account of the
ways in which global economic governance has been centrally involved in the production
and global propagation of the regulatory state as a heterogenous and evolving family of
state formations. I have also suggested that this reinterpretation offers us an additional
perspective on the present ‘post-neo-liberal’ moment, in which the regulatory state is itself
being retooled in response to a series of shifts – geopolitical, economic, climatic, political
and ideological. Where most observers describe this shift in institutional terms, I draw
attention to another dynamic, in which new techniques of reflexivization are being trained
upon new objects in the service of new aims. Specifically, in the current moment,
techniques of reflexivization are turned not upon the (no longer recognizable) social state
but, instead, upon the idea and architecture of competitive order itself. This entails a new
problematic: not so much the establishment of the fixed preconditions of a well-functioning
competitive order but, rather, the constitution of ‘recomposable’ competitive orders that
reflexively establish the conditions of possibility for their own iterative revision, organized in
part around discourses of resilience and disruptive innovation. This problematic is new, but
it is important to remember that the dynamics that have brought us to this point have been
set in train precisely by the success of neoliberal technologies of government in
transforming the practice of statecraft. A proper exploration of how these dynamics are
playing out in contemporary global economic governance will have to wait, evidently, for
another day, and as such this interpretation of the current moment remains speculative.
Even so, it seems to me to offer an illuminating framework for interrogating the
contemporary moment and poses an additional and potentially productive set of questions
for exploration. What specific techniques of reflexivization are characteristic of the current
moment? How do they differ from prior periods, and what is at stake in these differences?
Where, by whom and for what purposes are they currently being deployed and with what
effects? What forms of reflexivity are being produced, and precluded, by them? What kind
of work on the state is being performed through them, and how are state forms
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October 2024 ‘Global Disordering’ 139 being variously reconstituted as a consequence? If,
as Collier and Ong suggest, forms of global governance are ‘delimited by specific technical
infrastructures, administrative apparatuses or values regimes’,141 then these questions
may tell us something important about the shape and dynamics of the next chapter of
global economic governance. 141 Collier and Ong, supra note 8, at 11. Downloaded from
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