Administrative Justice and Globalization

This chapter, a discussion of administrative justice beyond the borders of the states, has three related objectives. The first is to point out the growth of this dimension of administrative justice, either within regional organizations or within global regulatory regimes. The second is to examine the challenges facing the new institutions and the commonalities and differences between their foundations, particularly with regard to the general principles of law aiming at promoting sound governance, such as due process, impartiality, and proportionality. The third objective is to examine the role of law. Judicial review and judicial doctrines are part of the story, but are not the whole story. It will be seen that law, both hard and soft, plays several roles in this area and variably impinges on the interest at stake.

Commerce Department Controls on Exports of “Dual Use” and Lower-Level Military Goods, Software, and Technology

Chapter 1 covers U.S. government controls on exports, reexports, and transfers of “U.S.-origin” goods, software, and technology that are commercial, “dual-use” (i.e., having both civilian and military uses), and low-level military in nature. These are governed principally by the Export Control Reform Act of 2018 and the Export Administration Regulations (EAR), which are administered by the Commerce Department’s Bureau of Industry and Security. The chapter explains: what kinds of items are subject to the EAR; the various bases for the EAR’s restrictions; how to determine whether your product or technology is covered and, if so, whether you will need a license to export or reexport it; how to get a license if one is required; how to clear and document the actual export; and the potential penalties for violating the rules. The chapter also explains how the EAR relate to the regulatory regimes covered in other parts of the book.

State Department Controls on Exports of Defense Articles and Defense Services

Chapter 2 covers U.S. government controls on exports, reexports, and transfers of “U.S.-origin” goods, software, and technology, and the provision of services, that are military in nature. These are governed principally by the Arms Export Control Act of 1976 and the International Traffic in Arms Regulations (ITAR), which are administered by the State Department’s Directorate of Defense Trade Controls (DDTC). The chapter explains: which items are subject to the ITAR; the basis and criteria for the ITAR’s restrictions; the requirement to register with DDTC if you export or manufacture items subject to the ITAR or if you are involved in other activities regulated by the ITAR; how to determine whether your product or technology is covered and, if so, whether you will need a license to export or reexport it; how to get a license if one is required; how to clear and document the actual export; the potential penalties for violating the rules; and reporting requirements related to political contributions, fees, and commissions paid in connection with certain sales, . The chapter also explains how the ITAR relate to the regulatory regimes covered in other parts of the book.

Economic Sanctions

Chapter 3 covers U.S. government economic sanctions, which may be imposed upon entire countries (as embargoes), specified economic sectors, or individual state or nonstate actors. These comprise approximately thirty different programs that are governed principally by the International Emergency Economic Powers Act (IEEPA), various other sanctions legislation, and the regulations of the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC). The chapter explains: which types of transactions are subject to the OFAC regulations; the basis and criteria for those restrictions; how to determine whether your transaction is prohibited without a license and, if so, whether you are likely to get a license for it; how to seek a license if one is required; and the potential penalties for violating the rules. The chapter also explains how the OFAC regulations relate to the regulatory regimes covered in other parts of the book.

Controls on Exports of Nuclear Commodities and on Assistance to Foreign Nuclear Activities

Chapter 4 covers two related sets of U.S. government controls on nuclear-related items that flow from the Atomic Energy Act of 1954 and the Nuclear Non-Proliferation Act of 1978. One, administered by the Nuclear Regulatory Commission (NRC), covers exports of nuclear hardware and nuclear materials. The other, called “Part 810” and administered by the National Nuclear Security Administration (NNSA) of the U.S. Department of Energy, covers assistance by U.S. persons (including transfers of nuclear-related technology) to foreign nuclear activities. The chapter explains: which items and activities are subject to the NRC and NNSA regulations; the basis and criteria for their restrictions; how to determine whether your commodity or activity is covered and, if so, whether you will need a license to export or reexport it; how to get a license if one is required; and the potential penalties for violating the rules. The chapter also explains how the NRC and NNSA rules relate to the regulatory regimes covered in other parts of the book.

International regime complexes and corporate crime: a research agenda based on the Volkswagen diesel fraud case

Criminological literature has often pointed to the absence or weakness of existing international regulation as important explanatory factors of corporate crime in global markets. This paper addresses the presence of multiple parallel, nested and overlapping regulatory regimes, and explores how such international regime complexity creates pathways to corporate crime. We use the Volkswagen diesel fraud case as a plausibility probe to illustrate such pathways to corporate crime. Our tentative analysis suggests that Volkswagen’s fraud in the US cannot be seen as independent of the EU regulatory regime, which was more lenient and offered various opportunities for creative compliance. We conclude that a regime complexity perspective is a promising addition to existing explanations of corporate crime in international settings and suggest a research agenda for future in-depth analyses of the implications of parallel and conflicting regulatory regimes for corporate crime.

Conceptualizing the Transnational Regulation of Plastics: Moving Towards a Preventative and Just Agenda for Plastics

This article categorizes and evaluates how regulatory regimes conceptualize plastics, and how such conceptualizations affect the production, consumption, and disposal of plastics. Taking a doctrinal and policy-oriented approach, it identifies four ‘frames’ – that is, four distinct and coherent sets of meanings attributed to plastics within transnational regulation – namely, plastics as waste to be managed; a material to be prevented; a good (or waste) to be traded freely; and inputs or outputs in production-consumption systems. Based on this analysis, three significant deficiencies in the transnational regulation of plastics are identified: the failure to frame plastics in terms of environmental justice and human rights issues; insufficient focus on plastics prevention (rather than management); and the role of law in reinforcing its production and consumption.