Photo illustration by John Lyman

World News


Legal Imperialism: The Stretch of Western Courts

Historically, judicial proceedings were confined within national borders, addressing local disputes under the purview of domestic laws. This inward focus has, however, been upended by the ebb and flow of empires and the ever-expanding domain of Western legal institutions. Today, the term ‘empire’ has morphed, with multinational corporations colonizing our cognition, monopolizing our attention, and emptying our wallets. As a result, Western courts have ambitiously sought to project their legal authority globally.

One can scarcely traverse the lobbies of hotels or conference centers in Dubai, London, Milan, or Miami without encountering a gathering of the legal and corporate elite—lawyers, accountaries, intelligence consultants, and publicists—engaged in discourse on the ever-extending reach of the law. This coterie, perhaps best epitomized by former British Prime Minister Theresa May’s “citizens of nowhere,” benefits from a lucrative nexus of international law firms, global clientele, and a penchant for circumventing local legislations in favor of global hegemony.

This cadre, in pursuit of introducing Western innovations to untapped markets, often perceives adherence to local legal traditions as an inconvenient obstacle rather than a virtue. It’s their expertise, after all, that sanctions their presence in such discussions, devising strategies to export their jurisprudential ethos irrespective of regional norms.

Among the final barriers to their global legal dominance is the Act of State doctrine, a relic of the post-World War II era, preceding the surge in international trade. This doctrine, rooted in common law, mandates judicial restraint from questioning the legality of foreign sovereign actions within their territories.

Despite these legalists’ success in forum shopping—litigating in courts oceans away from the relevant jurisdiction—they have yet to circumvent this doctrine completely. However, a series of forthcoming high-profile arbitrations involving state entities may well grant them the extensive reach they covet, particularly concerning disputes with state-owned enterprises and foreign investments.

The international community must confront this overreach. Can we condone the presumption of foreign courts that deem themselves superior arbiters in what they consider less significant regions? Or is it time to discard legal imperialism as an archaic and undesirable ideology?

The implications are profound, with international arbitrations involving staggering sums at stake. Consider last year’s case involving Korek, an Iraqi telecom company, and Agility, a Kuwaiti firm. The ensuing $1.65 billion award, scheduled for appeal in Dubai, captured media attention not merely for its enormity but for the underlying allegations of bribery within Iraq’s telecommunications regulatory body—an issue seemingly uninvestigated by the awarding tribunal.

The Korek-Agility case concerns allegations of the bribery of Iraqi officials influencing a decision by the Iraqi communications regulator, a claim that doesn’t appear to have been investigated first-hand by the court before issuing the award. Is this a one-off example of the so-called soft bigotry of low expectations vis-à-vis Iraq, or is it indicative of a broader breakthrough in the rule that courts don’t opine on the decisions of foreign government regulators? Which nation’s officials will be next to be accused of corruption or worse?

It’s no surprise that the first major blow against the Act of State doctrine has been dealt with behind closed doors. Arbitration is the opposite of open justice. It’s a murky world in which little is made public. What little we know of the Korek case is glimpses of alleged bribes being investigated by corporate investigators, who themselves paid bribes, spied on addresses, and placed tracking devices on cars. The secrecy in which arbitration is conducted isn’t just beneficial because it enables the provision of unorthodox evidence but also because it enables judgments to escape much of the legal and public scrutiny that cases in courts are subject to.

This is a world in which money and power thrive. And it is a world in which the decisions of national governments may finally have lost power to the whims of international corporations and their legal imperialists.