Global administrative law through the Polish lens: From practice to theory
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Global administrative law
through the Polish lens: From
practice to theory
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Piotr Szwedo*
Polish interest in global administrative law was a result of practical factors: cases of interfer-
ence between national law and lex sportiva, quality standards and wood certification. Polish
academia opted for a utilitarian explanation of those cases based on prior legal theories stem-
ming from national and international law as well as from the economic power of sport bodies
and private standard setters. As global administrative law is deeply fragmented and straddles
national/international legal orders, its unity as a system is doubtful. Global administrative law
should not be perceived as a body of law but as an alternative theory explaining legal phenom-
ena resulting from globalization. As a doctrinal idea, it derives from the traditions of common
law, which need to be translated into Continental/positivistic language. Given the American
understanding of “administration,” “accountability,” and “sources of law” global administra-
tive law can be read correctly only in a given legal tradition. The article serves as a counterpoint
to voices calling for the abandonment of present legal concepts and proposes the adaptation of
the existing terminology of international/national law to changing circumstances.
1. Introduction
Global administrative law (GAL) has emerged as an area of scholarship1 which aims
to critically reassess the transformations within international law, the transnational
effects of national legislation, and their mutual interplay.2 The primary achievement
* Lecturer of international trade and investment law at Jagiellonian University, Krakow. Email: piotr.
szwedo@uj.edu.pl. The author would like to thank Phil C.W. Chan, Kustrim Istrefi, Michał Kowalski,
Roman Kwiecień, Dennis Paterson, Horace Yeung, and two anonymous reviewers for their comments on
various stages of writing this paper. For interesting discussions I am also grateful to the participants in
the Changing Landscape of Polish Public Law workshop and to the members of the research group on global
law at Cardinal Stefan Wyszyński University in Warsaw and University of Navarra.
1
Benedict Kingsbury, Nico Krisch, & Richard B. Stewart, The Emergence of Global Administrative Law, 68
Law & Contemp. Probs 15 (2005).
2
The concept has attracted the attention of numerous academics around the world: for an extensive bibliogra-
phy, see Institute for International Law and Justice (IILJ), New York School of Law, Global Administrative Law:
A Bibliography, available at http://www.iilj.org/gal/bibliography/ (last visited Feb. 20, 2015). The concept
has been developed and criticized in several research institutes: the list of research projects related to global
administrative law is available at the IILJ website, http://iilj.org/GAL/links.asp (last visited Feb. 20, 2015).
I•CON (2015), Vol. 13 No. 1, 156–179 doi:10.1093/icon/mov006Global administrative law through the Polish lens: From practice to theory 157
of the concept is a holistic approach to normative networks spanning the global com-
munity. It has provided an alternative to classical state-centric visions of international
law and international relations. The concept has brought the attention of scholars to
lawmaking as a non-exclusively public phenomenon which may also originate with
private bodies performing public functions.
Until recently, GAL had been rarely debated among Polish legal scholars.3 Instead, it
was rather examined by political scientists in relation to global governance.4 Since the
1920s, the concept of “international administrative law” received some attention, but
it has been an object of reflection of municipal public law scholars.5
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The interest in GAL was inspired by the practical influence of norms not rooted
in classical international public law but affecting different subjects across borders of
states. This article follows this path and starts with a presentation of the most debated
cases of interference between GAL and Polish law (Section 2). Their specificity lies
in capturing the activity of organs or bodies having non-public origin but fulfilling
public or quasi-public tasks. The analysis is based on a GAL theory which emphasizes
fading dichotomies between public/private and national/international legal orders
and postulates to increase the transparency and to provide an effective right of review.
What is more original than the cases themselves is their explanation—an alternative
to the one based on GAL theory. Polish scholarship relies on pragmatic/utilitarian jus-
tification which is further developed in this paper (Section 2.4). This initial difference
in explanations triggered a snowball effect. It pushed Polish scholars toward further
study that enabled them to discern fundamental divergences between theoretical con-
cepts. Those inconsistencies raise difficulties in accepting GAL as a convincing legal
theory in Poland. This skepticism is also shared in France which, as a unitary state
with a continental legal tradition, is based on theoretical underpinnings similar to
those of Polish public law. 6 Therefore, the main purpose of this article is to present
3
It was mentioned by Marek Zieliński in his text on international administrative law in 2008: see
Marek Zieliński, O pojęciu międzynarodowego prawa administracyjnego [On the Concept of International
Administrative Law], 9 Państwo i Prawo (PiP), 16, 30 (2008); other works appeared in subsequent years:
Marek Zieliński, Pojęcie i zasady globalnego prawa administracyjnego [The Concept and Principles of the
Global Administrative Law], in Prawo międzynarodowe i wspólnotowe wobec wyzwań współczesnego świata
377 (Elżbieta Dynia ed., 2009); Marek Zieliński, Międzynarodowe decyzje administracyjne [International
Administrative Decisions] 223 (2011). See also Piotr Szwedo, O pojęciu globalnego prawa administracyjnego
[On the Concept of Global Administrative Law], 8 Forum Prawnicze 60 (2011); Roman Kwiecień, On Some
Contemporary Challenges to Statehood in the International Legal Order: International Law between Lotus and
Global Administrative Law, 51 Archiv des Völkerrechts 279 (2013).
4
See Janusz Gołębiowski, Global governance: koncepcje—doświadczenia—perspektywy [Global Governance:
Concepts-Experiences-Perspectives] (2008), available at http://akson.sgh.waw.pl/~zczajk/IGS_homep-
age/documents/WorkingPapers/wp291.pdf (last visited Feb. 20, 2015).
5
Zygmunt Cybichowski termed the general problematic of organs in international relations “international
administration,” dividing it into different fields of administration such as navigation, postal services, dip-
lomatic protection, trade, rights of workers, intellectual property, obscene publications, protection of
cables and many others. See Zygmunt Cybichowski, System prawa międzynarodowego [System of International
Law] (1922), 5, 169–188.
6
See Un droit administratif global? A Global Administrative Law? (Clémentine Bories ed., 2012). I am aware
that research on GAL was also conducted outside the United States, including Continental Europe (e.g.158 I•CON 13 (2015), 156–179
how the Polish legal scholarship perceives the GAL movement and to propose its criti-
cal reappraisal.
Polish jurisprudence was strongly influenced by legal positivism, including the
Kelsenian monist vision of the legal system.7 The latter model was the most natural
point of reference for legal scholars in their reflection about possible global law. Legal
realism, which shaped American legal theory, was instead treated in continental
Europe as a “foreign body.”8 For Polish lawyers, GAL was perceived as another attempt
to build a monistic theory of the legal system by overcoming the binary national/inter-
national dichotomy in the age of globalization. Therefore the first theoretical question
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concerned the unity of global law (Section 3.1). If the coherence of GAL as a single
body is to be analyzed, its distinctiveness should also be examined. The question is to
determine whether GAL should be taken as a body of law or rather as a legal theory
that describes and postulates the normative dimension of globalization (Section 3.2).
The following Sections (3.3 and 3.4) are devoted to the American roots of GAL and
raise the issue of translation of GAL concepts for continental lawyers. GAL’s terms
and ideas should be more precisely defined and take into account a comparative per-
spective. Its “administrative” character requires an explanation also in relation to
already existing legal branches (Section 3.3). Similar difficulty arises with regard to
the term “legal sources” (Section 3.4). The domination of positivism manifested itself
in the well-established distinction between formal and material legal sources. In that
respect, the GAL idea of classifying soft law as a legal source requires clarification. The
dialogue about the fundaments and the terminology of GAL should lead to a better
understanding of the developments under national and international law in the age
of globalization. It is pertinent to ask how the GAL theory can inspire a reconceptual-
ization of the contemporary international law (see conclusions in Section 4).
2. The practice of GAL
GAL is a theory which asks important questions about the activity of different bodies
and organs. In French literature on the subject, Lurence Dubin critically assessed GAL’s
innovative character vis-à-vis the five types of global administration distinguished by
its founding fathers.9 The first type, “administration by formal international organiza-
tions,” refers, inter alia, to the functioning of committees within the Security Council;
its originality lies in the analysis of procedural conditions of decision-making, but
it does not refer to a normative reality outside international law. The second type,
“administration based on collective action by transnational networks of cooperative
Italy, Germany, Portugal); nevertheless, one of the objects of criticism is that it remained so closely linked
with the American legal tradition that its understanding elsewhere encounters difficulties.
7
It was due inter alia to the works of Jerzy Wróblewski and his book Zarys krytyki normatywizmu Hansa
Kelsena [An Outline of a Critique of Hans Kelsen’s Normativism] (Zrzeszenie Prawników Polskich, 1955).
8
Works of Leon Petrażycki, a forerunner of legal sociology may be mentioned as exceptions.
9
Kingsbury et al., supra note 1, at 20; Laurence Dubin, Le droit administratif global, analyse critique de son
existence et de son articulation avec le droit international public, in Un droit administratif global?, supra note 6,
95 at 100–105.Global administrative law through the Polish lens: From practice to theory 159
arrangements between national regulatory officials,” which may be exemplified by
the activity of the Basel Committee, was also analyzed by international lawyers.10 The
“distributed administration conducted by national regulators under treaty, network,
or other cooperative regimes” refers to the operation of national organs according to
the requirements of international organizations, such as the World Trade Organization
(WTO). The obligation of state authorities to act according to international engage-
ments came to the fore in decisions of international organs and it is still the core of
international responsibility and international law. However, activities of national
organs which determine the status of subjects beyond states’ borders, for example
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the Internet Corporation for Assigned Names and Numbers (ICANN), reside at the
limits of international law. Similarly, the activity of private institutions and standard
setters may only be incorporated into international public law if understood in the
broadest sense. The analysis of the fourth and fifth types—namely “administration
by hybrid intergovernmental–private arrangements” and “administration by private
institutions with regulatory functions”—seems to be the most valuable part of GAL
theory. Such categories of “private administration” may be explained using GAL tools
(Sections 2.1, 2.2, and 2.3). However, a more pragmatic approach can be a sufficient
alternative and more accessible to a European lawyer (Section 2.4).
2.1. Sports law
Lex sportiva11 was specified by scholars as a field of global governance and of GAL.12 It was
one of the most debated examples of GAL, mostly in the context of the private nature of
sports federations and the role of the Court of Arbitration for Sport (CAS).13 The Polish
practice in that area has something to add to the general discussion.14 Competition in
sports has a global dimension; therefore adoption and enforcement of uniform rules
is required. This leads to the conclusion that sports governance, at both the national
and international levels, requires that there be institutions of monopolistic character.
Most sports disciplines15 are governed by one association at each level. This is the case
of football, which is run globally by the International Federation of Association Football
(FIFA), and regionally in Europe by the Union of European Football Associations (UEFA).
10
Régis Bismuth, La Coopération internationale des autorités de régulation du secteur financier et le droit interna-
tional public (2011).
11
This section is partly based on my previous research: see Piotr Szwedo, Poland at the Gates of EURO
2012—Global Sport Governance and the Limits of the State’s Autonomy, 11 U. Denver Sports & Ent. L.J. 57
(2011).
12
Kingsbury et al., supra note 1, at 33 and 39.
13
On GAL and lex sportiva, see generally Ken Foster, Global Administrative Law: the Next Step for Global Sports
Law?, 19 Sports & L.J. 25 (2012); Lorenzo Casini, The Making of Lex Sportiva by the Court of Arbitration for
Sport, 12 German L.J. 1317 (2011); Antoine Duval, Lex Sportiva: A Playground for Transnational Law, 19
Eur. L. J. 822 (2013).
14
For a discussion of the Polish football governance in general context, see Borja Garcia & Henk-Erik Meier,
Keeping Private Governance Private: Is FIFA Blackmailing National Governments?, Paper presented at the
13th Biennial Conference of the European Union Studies, Baltimore, MD, May 11–13, 2013, at 17–19,
available at https://dspace.lboro.ac.uk/dspace-jspui/handle/2134/12635 (last visited Feb. 20, 2015).
15
With the notable exception of boxing: World Boxing Association, World Boxing Council, and World
Boxing Organization coexist.160 I•CON 13 (2015), 156–179
These bodies, formally private associations under Swiss civil law,16 exercise great power
not only over their members, which are national football associations, but also over
other subjects such as states and their governments. According to article 68(5) of the
Polish Constitution, the development of physical culture shall be an object of support by
public authorities.17 On the one hand, sport education and competition is a task partly
funded by public money. As a result, there emerges the problem of the nature and the
scope of public control. On the other hand, FIFA and UEFA require that their members’
affairs be managed independently, with no influence of third parties, including govern-
ments, and that their governing bodies be either appointed or elected within the respec-
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tive association.18 In extreme cases, the football federations have threatened to suspend
their members’ rights, which would in turn lead to the suspension of national represen-
tations, clubs, and referees and to matches being lost by walkover.19 This private/public
“confusion” within lex sportiva attracted the attention of the GAL doctrine.
The Polish Football Association (PFA) is a member of FIFA and UEFA, and therefore
it “absolutely commits itself to respect . . . the rules and decisions of FIFA and UEFA,
recognizes the jurisdiction of Court of Arbitration for Sport in Lausanne in cases of
international football disputes, according to the relevant rules of FIFA and UEFA; to
direct the municipal disputes in the last instance resulting from the application of the
statute or the PFA’s rules . . . to an independent and impartial arbitration court acting
on the basis of Polish law, with the exclusion of the ordinary courts.”20
The PFA has a twofold nature. On the one hand, it functions as a private associa-
tion, regulated by the Polish Act—Law on Associations.21 On the other hand, it is sub-
jected to the regulations of the Act on Sports.22 The latter Act replaced the Act on
Competitive Sports23 which granted the Minister of Sports a relatively broad scope of
control over national sports associations. The minister could cancel the association’s
16
Both organizations are registered in the Swiss Commercial Register according to art. 60 of the Swiss
Civil Code, see FIFA Statutes, art. 1 (2012), available at http://www.fifa.com/mm/document/affedera-
tion/generic/01/66/54/21/fifastatutes2012e.pdf (last visited Feb. 20, 2015); Statutes of UEFA, art.
1 (2010), available at http://www.uefa.com/MultimediaFiles/Download/EuroExperience/uefaorg/
WhatUEFAis/01/80/54/03/1805403_DOWNLOAD.pdf (last visited Feb. 20, 2015).
17
Konstytucja Rzeczypospolitej Polskiej [Constitution of the Republic of Poland] art. 68(5), 78 Dziennik
Ustaw [Official Journal, hereinafter Dz. U.] 483, later amended, available in English at http://www.sejm.
gov.pl/prawo/konst/angielski/kon1.htm (last visited Feb. 20, 2015).
18
FIFA Statutes, supra note 16, ¶ 17(1)–(2); UEFA Statutes, supra note 16, art. 7bis(2).
19
Examples of such threats: Nigeria Facing Possible Suspension, Ekoonibajeng.com (July 2, 2010), available at
http://ekoonibajeng.com/index.php?topic=1109.0;wap2 (last visited Feb. 20, 2015); FIFA Chief Warns
French President, BBC (Jun. 29, 2010), available at http://news.bbc.co.uk/sport2/hi/football/world_
cup_2010/8771693.stm (last visited Feb. 20, 2015); Ethiopian Football Federation Suspended, Fifa.Com
(July 29, 2008), available at http://www.fifa.com/associations/association=eth/media/newsid=835129.
html (last visited Feb. 20, 2015); Iraq Suspended by FIFA, Espnsoccernet.com (Nov. 21, 2009), available at
http://soccernet.espn.go.com/news/story?id=701468&sec=global&cc=5901 (last visited Feb. 20, 2015).
20
Statute of the Polish Football Association (2009), art. 4 § 2, available at https://www.pzpn.pl/public/sys-
tem/files/site_content/635/47-Statut%20Polskiego%20Związku%20Piłki%20Nożnej.pdf (last visited
Feb. 20, 2015).
21
Ustawa prawo o stowarzyszeniach [Act—Law on Associations], 79 Dz. U. 855 (2001), later amended.
22
Ustawa o sporcie [Act on Sports], 127 Dz. U. 857 (2010).
23
Ustawa o sporcie kwalifikowanym [Act on Competitive Sports], 155 Dz. U. 1298 (2005).Global administrative law through the Polish lens: From practice to theory 161
resolution, suspend the authorities of the association, withdraw its consent for the
creation of an association or file a motion for a resolution of an association to a rel-
evant Polish court.24 Under the new law, the Minister has lost the power to suspend
sport organizations, which has now been transferred to common courts.25
FIFA and UEFA used their statutes to point out the inadequacies of municipal law
in situations of heightened political pressure, and imposed their reasoning on, or even
“dictated” to, the national legislator. Such a capacity to act as a governing body attracted
the attention of GAL specialists. The fundamental change in the Polish sports regula-
tions, namely transferring the control over national sports associations to global admin-
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istrative bodies such as FIFA and UEFA, raises the question of the character of these
formally private legal bodies. The moment of amendment of the Polish regulations was
not a coincidence, and it overlapped with the preparations for the 2012 UEFA European
Football Championship (Euro 2012) hosted by Poland and Ukraine. The perspective of
an eventual conflict with UEFA could have potentially led to the suspension of the Polish
representation or to a change of the host country. As a result, the Polish government
had no choice but to comply with the federation’s requirements.26 The described situa-
tion could serve as an example of a state’s “forced” harmonization with the standards
of GAL. On the other hand, the majority of Polish public opinion supported taking back
the power from sports associations, which were accused of corruption, lack of transpar-
ency, and ineffective management responsible for the weak results of Polish athletes.
The effective overturn of Polish decisions by FIFA and UEFA challenged the role of the
state in global and national sports governance. UEFA’s “dictates,” which were binding
thanks only to the union’s economic power and political monopoly in football gover-
nance, additionally irritated Polish public opinion, as both UEFA and FIFA had faced
serious accusations of corruption and lack of transparency.27 The preparations for inter-
national games, such as Euro 2012, are hardly possible without the active role of the
state. The consequences of the football federations’ decisions also have the capacity to
affect the states which have a legal and non-legal interest in organizing the games.
The possibility of transferring the UEFA European Championship is regulated by art
icle 49(2)(c) of the UEFA Statutes, which states: “[t]he Executive Committee shall decide
whether to create or take over other competitions, as well as whether to abolish cur-
rent competitions.” This provision gives full discretion to the Committee which makes
its decisions by vote. The UEFA Statutes do not provide any substantial criteria for ques-
tioning such decisions and, moreover, the public bodies lack standing before the CAS.
Consequently, the Polish government, as much as any other government, lacks legal tools
to challenge the federations’ decisions on organizing or cancelling the games. Similarly,
global sports law does not provide any legal tools to challenge decisions suspending a
member’s rights by non-members. The Federal Supreme Court of Switzerland, which
24
Id. arts. 23(1) and 24(1).
25
Act on Sports, supra note 22, arts. 21–23.
26
See Jolanta Żyśko, Comparative Elite Sport Development: Systems, Structures and Public Policy 190–191
(2008).
27
See David Yallop, England World Cup Bid: How Did We Get It So Wrong?, The Telegraph, 4 Dec. 2010, available
at http://www.telegraph.co.uk/sport/football/8181639/England-World-Cup-bid-how-did-we-get-it-so-
wrong.html (last visited Feb. 20, 2015).162 I•CON 13 (2015), 156–179
has a capacity to play a limited appeal organ to the CAS, has confirmed the associations’
capacity to discipline their members, for example by imposing sanctions.28 This lack of
possible verification echoes the access to review mechanisms postulated by Kingsbury
et al.29 The GAL theory exposed this still existing deficit within lex sportiva.
The introduction of public control and the suspension of the national association’s
organs on the grounds of municipal regulations would be considered to be non-demo-
cratic and would result in the suspension by UEFA of national representations and their
players. In such a situation, the public authorities would have no judicial forum where
they could challenge the federations’ decisions. Such a conflict of interests between the
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Polish government and an international administrative organization can serve as an
illustration of the growing authority of the latter. Nevertheless, it can also be seen as
political or economic question, rather than a question of law. Poland had the opportu-
nity to reform its football organizations. The price would have been: suspension of the
Polish national team and relocation of Euro 2012 to another host country.
The clash with FIFA/UEFA standards sparked a discussion about GAL in Poland.
Decisions taken within sports federations are often accused of violating transparency
requirements—one of the main values advocated by GAL.30 Recently, the federations
have faced allegations of corruption in the 2018 and 2022 World Cup bidding process.31
This is due to the deficit of control and procedural guarantees within these administrative
bodies. What was strongly criticized in Poland was a lack of sufficient review mechanisms
within these organizations. The Polish government or civil society representatives would
have encountered insurmountable difficulties when challenging FIFA/UEFA decisions
about the relocation of Euro 2012. GAL founders put emphasis on the problem of demo-
cratic deficit within global public organizations and on the role of law in remedying that
deficit.32 GAL then proposed standards that would reduce the domination of economic
capital over social expectations. However, what is questionable is the need for referring to
a separate body of law in order to articulate those postulates (see Sections 2.4 and 3.2).
2.2. Quality standards
The technical and quality standards and their legal character were also debated by GAL
specialists.33 As is the case of other legal systems, Polish public law has adopted voluntary
28
Bundesgericht [BGer] [Federal Supreme Court] Jan. 5, 2007, Entscheidungen des Schweizerischen
Bundesgerichts [BGE] 4P_240/2006 (Switz.) ¶ 4.2, quoting Hans Michael Riemer, Berner Kommentar
(1990), N. 205 et seq. (commentary on art. 70 Swiss Civil Code); the case is available at http://www.
polyreg.ch/bgeunpub/Jahr_2006/Entscheide_4P_2006/4P.240__2006.html (last visited Feb. 20, 2015).
29
Kingsbury et al., supra note 1, at 39.
30
Id. at 37.
31
Qatar 2022: FIFA Sponsors Back Corruption Investigation, BBC Sport Football (June 9, 2014), available at http://
www.bbc.com/sport/0/football/27751265 (last visited Feb. 20, 2015); Russia 2018 World Cup Vote Should
Be Rerun After Qatar Claims, MP Says, The Guardian (2 June 2014), available at http://www.theguardian.com/
football/2014/jun/02/russia-2018-world-cup-vote-rerun-qatar-gerry-sutcliffe (last visited Feb. 20, 2015).
32
Kingsbury et al., supra note 1, at 48.
33
Pablo Márquez, Standardization and Capture: The Rise of Standardization in International Industrial Regulation
and Global Administrative Law, 7 Global Jurist 5 (2007); Halina Ward, The ISO 26000 International
Guidance Standard On Social Responsibility: Implications for Public Policy and Transnational Democracy, 12
Theoretical Inquiries in Law 674 (2011). See generally Kristina Tamm Hallström, Organizing International
Standardization. ISO and the IASC in Quest of Authority (2004).Global administrative law through the Polish lens: From practice to theory 163
quality standards. The International Organization for Standardization (ISO) is formally a
private association composed of a variety of national standards bodies. For example, the
American National Standards Institute (ANSI) is a private body which combines indus-
try representatives, professionals, consumers, and governmental officials. Norms issued
by this organization are elaborated on a consensual basis.34 The Association française
de normalization (AFNOR) is a private body but serves public goals.35 Certain aspects
of AFNOR’s functioning are regulated by French public law.36 Following the Prime
Minister’s circular, the rules issued by the Association occupy a privileged position.37 As in
the case of lex sportiva (see Section 2.1), the GAL doctrine addressed the blurred boundary
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between private and public bodies.38 Private bodies, such as ISO, an association created
under the Swiss civil law,39 are involved in the fulfillment of public tasks (see Section 2.4).
What distinguishes the Polish standards governance is that the Polish Committee
for Standardization (Polski Komitet Normalizacyjny) is financed by public money. It
operates in accordance with the standards of transparency, public access and pub-
lic interest, consensus, independence from public administration or interest groups,
and compatibility with international standards.40 On limited grounds related to state
security, to cooperation with other public organs, and the exercise of international
obligations, the Prime Minister controls the Committee. Its standards are voluntary.
At the beginning, ISO functioned as a forum for the harmonization of preexist-
ing technical regulations. It dealt with standards of a purely technical nature in
order to provide common indications for cars,41 screws,42 bankcards,43 and for the
transliteration of Arabic characters into the Latin alphabet.44 Because of standards
impact on global trade, the WTO and ISO have passed an agreement on the Standards
Information System.45 Due to globalization and trade liberalization, the number of
34
International Organization for Standardization, Members: United States (ANSI), available at http://www.iso.
org/iso/home/about/iso_members/iso_member_body.htm?member_id=2188 (last visited Feb. 20, 2015).
35
Decree of Mar. 5, 1943 recognizing the public utility of the Association française de normalisation,
Journal officiel de la République française [J.O., Official Gazette of France] Mar. 12, 1943, at 722.
36
See Decree No. 2009–697 of June 16, 2009 on standardization, J.O. June 17, 2009, at 9860.
37
Association française de normalisation (AFNOR), Circular of July 5, 1994 on the Reference to Standards
in Public Procurement and Contracts Subject to Certain Community Procedures, http://www.afnor.org/
content/download/16734/121949/version/1/file/circulaire.pdf (last visited Feb. 20, 2015).
38
Benedict Kingsbury & Megan Donaldson, Global Administrative Law, in Max Planck Encyclopedia of
International Law, ¶ 1 (Rüdiger Wolfrum ed., 2012), available at http://opil.ouplaw.com/home/EPIL (last
visited Feb. 20, 2015).
39
See ISO Statutes, art. 18.2 (17th ed., 2013), available at http://www.iso.org/iso/statutes.pdf (last visited
Feb. 20, 2015).
40
Id. art. 4.
41
ISO 4148:2004, Road vehicles—Special warning lamps—Dimensions, http://www.iso.org/iso/cata-
logue_detail.htm?csnumber=40429 (last visited Feb. 20, 2015).
42
ISO 68-1:1998, General purpose screw threads—Basic profile—Part 1: Metric screw threads, http://www.
iso.org/iso/home/store/catalogue_tc/catalogue_detail.htm?csnumber=3707 (last visited Feb. 20, 2015).
43
ISO/IEC 7810:2003, Identification cards—Physical characteristics, http://www.iso.org/iso/catalogue_
detail?csnumber=31432 (last visited Feb. 20, 2015).
44
ISO 233:1984, Documentation—Transliteration of Arabic characters into Latin characters, http://www.
iso.org/iso/home/store/catalogue_tc/catalogue_detail.htm?csnumber=4117 (last visited Feb. 20, 2015).
45
Decision on Proposed Understanding on WTO–ISO Standards Information System, http://www.wto.org/
english/docs_e/legal_e/37-dtbt1_e.htm (last visited Feb. 20, 2015).164 I•CON 13 (2015), 156–179
norms elaborated by this organization has been growing constantly. Standards of
quality management were first published by ISO in 1987. They are adaptable to differ-
ent kinds of production. Their accreditation to certify the quality standards is granted
by the Polish Centre for Accreditation. In Poland, there are thirty-three private accred-
ited bodies, even though the Centre is a public body acting in accordance with the Act
on the Conformity Assessment System.46 The conformity assessment system is similar
to the one of France where the task is entrusted to Comité français d’accréditation
(CORFAC), a unique accreditation body granting acts of public authority.47
With time, ISO became active in areas traditionally reserved for public law. The fam-
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ily of ISO:14000 standards aims to give enterprises and other entities a complete strat-
egy for managing their environmental impact. More recently, ISO became active in
the field of social responsibility, addressing questions previously self-regulated by pri-
vate companies and by conventions adopted under the auspices of the International
Labour Organisation. Since environmental protection is a common goal, it is regulated
predominantly by public law. The emergence of voluntary standards in the area of
public law corresponds to the characteristics emphasized by the GAL theory.
Polish regulations often contain a reference to ISO standards. For instance, accord-
ing to the Law on Maritime Equipment, research standards should be understood as
those set, among others, by ISO;48 an economic operator who applies for a license in
armament trade needs to provide evidence of an internal system of control under
ISO:9000 standards;49 waste management and waste prevention plans should be
based on ISO:14000 standards.50 Polish public procurement regulations allow for the
possibility of requiring ISO standards by public contracts awarding entities. According
to Polish administrative and judicial decisions, the requirement does not constitute a
breach of the principle of fair competition.51 Nevertheless, the requirement of certifi-
cation has to be justified.52 Therefore, in some contexts, ISO regulations de facto turned
from being private and voluntary to public and mandatory rules within the Polish
public procurement system. The relative character of the “hard” and “soft” law labels
was also pointed out by the GAL doctrine.
The “hardening” of voluntary technical rules in Polish law is, of course, not an isolated
phenomenon; rather, it is symptomatic of a wider tendency. ISO norms become of crucial
importance to the liberalization of trade, which requires the recognition and harmoniza-
tion of technical standards. Article 2(4) of the WTO Agreement on Technical Barriers to
Trade (TBT) requires the application of the “relevant international norms” as the basis
46
138 Dz. U. 935 (2010), as amended.
47
Decree No. 2008-1401 of Dec. 19, 2008 on Accreditation and Conformity Assessment Made under sec-
tion 137 of Act No. 2008–776 of Aug. 4, 2008 on Modernization of Economy.
48
93 Dz. U. 899 (2003), art. 3(2).
49
Act on foreign trade in goods, technologies and services of strategic importance for national security and
the maintenance of international peace and security, 194 Dz. U. 899 (2013), art. 11(3).
50
Act on Waste, 21 Dz. U. 899 (2013), art. 34(5) and Annex 5.
51
See Decision of Zespół Arbitrów przy Urzędzie Zamówień Publicznych [Public Procurement Office
Arbitration Panel], Aug. 18, 2005, UZP/ZO/0-2181/05.
52
Decision of Zespół Arbitrów przy Urzędzie Zamówień Publicznych [Public Procurement Office Arbitration
Panel], July 14, 2003, UZP/ZO/0–993/03.Global administrative law through the Polish lens: From practice to theory 165
of national technical regulations. In other words, it assumes the conformity of national
technical norms to those standards. Alternative rules, not based on ISO standards, might
be considered to be “more trade-restrictive than necessary to fulfill a legitimate objective”
(article 2(2) of the TBT). Such a regulation strengthens ISO’s position as a standard-setter.
Due to the globalization of trade, national standardizing bodies prefer to wait for ISO’s ini-
tiative or act within the ISO framework in order to create a common regulation, rather
than to invest in their own standard setting, which would potentially have to be adapted to
international standards. In many domains, ISO has attained a quasi-monopolistic position.
The example of ISO and its interference with Polish public law adequately describes
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several features of contemporary public law enumerated by the GAL doctrine. First,
the functioning of ISO helps to foreground the role of private or semi-private bodies
which fulfill similar tasks and provide a public service (Section 3.3). Moreover, stan-
dards that are formally voluntary become quasi-mandatory. Such change of their
normative character was analyzed by GAL scholars.53 The inclusion of voluntary
standards and their “hardening” is a result of implicit or explicit references in national
and international law. The application of a voluntary standard may also stem from the
existing requirements for market entry or result from the integration of those require-
ments in legal application, as is the case of Polish public procurement. The example
of wood certification (discussed in Section 2.3) demonstrates the domino effect in
the spreading of technical standards as a consequence of economic power of certain
non-state actors in international relations. Such an approach also reflects the realistic
American approach to legal requirements which is typical of GAL, but which may be
explained alternatively and critiqued (Sections 2.4 and 3.4).
2.3. Wood certification
The Forest Stewardship Council (FSC) was founded in 1993 in order to conduct sur-
veillance of wood harvesting and exploitation in an environmentally sound manner.
It was a joint initiative by representatives of timber users, traders, and environmental
and human rights organizations.54
The FSC eco-labeling scheme attracted the attention of GAL specialists.55 As in the
case of ISO standards (Section 2.2), certification is voluntary, but for different rea-
sons becomes quasi-obligatory. As in the case of organic foods, the voluntary certifi-
cation scheme gradually became tied to a government regulatory and management
program. As Errol Meidinger has shown, governments saw themselves as non-actors
in forestry certifications.56 However, the threat of increased governmental regulation
has been an underlying factor in the acceptance of the certifications. Moreover, cer-
tification programs have received a certain amount of public support because they
promote compliance with the existing laws. Finally, many certification programs have
53
Kingsbury et al., supra note 1, at 22.
54
Forest Stewardship Council, About Us: History, http://www.fsc.org/our-history.17.htm (last visited
Feb. 20, 2015).
55
Errol Meidinger, The Administrative Law of Global Private-Public Regulation: the Case of Forestry, 17 eur. j.
int’l l. 47 (2006).
56
Id. at 59.166 I•CON 13 (2015), 156–179
drawn directly on government resources, including the criteria and indicators pro-
duced by intergovernmental organizations.57
Forestry certification and the chain of custody (CoC) of wood were introduced into
Polish forestry by a decision of the General Director of State Forests in 1995. As a result,
Poland was the first European country to certify its state forests.58 The FSC-Poland was
founded in 2001 thanks to a common initiative of non-governmental organizations
(NGOs) and industry representatives. It is the only representative of the FSC in Poland.59
Its norms regulate the management of forests, as well as the flow of timber from the forest
to the consumers. These norms were developed by the Working Group of the FSC Poland,
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accredited by the FSC AC (Asociación Civil, association under Mexican Law), to become the
fundamental resource for the evaluation of wood production in Poland.60 The FSC Rules
make certification conditional by making a reference to “all domestic legal regulations on
forests, treaties and agreements to which the state is a party.”61 The FSC logo is a regis-
tered trademark: its use requires authorization which can be obtained only on the basis
of a previous positive certification. The logo, which is an eco-label, plays a double role. On
the one hand, it informs the client about the certified quality of the wood from which a
given good (e.g., paper) is produced. On the other hand, the mark also generates environ-
mental awareness among consumers and plays a persuasive and commercial function.
The certification of Polish forests by the FSC constitutes, alongside ISO, another example
of the absorption of private management norms into the Polish public legal system.
The FSC certification resulted from the economic pressure exerted on Polish wood
exporters who were required by their business partners to provide eco-labeled wood
products. All of the strategic timber customers of State Forests, such as Castorama,
IKEA, Leroy Merlin, OBI, British Premium, Intercell, etc., demand certificates as a pre-
requisite to contracts.62 The majority of forests in Poland are state-owned, and the FSC
certification has been applied to 85 percent of them.63 Estimates indicate that some 80
percent of lumber in Poland is FSC-certified, in particular timber for further process-
ing, mainly into wooden construction fittings, pulp and paper, furniture, and all spe-
cial grade timber for processing into veneer and plywood.64 Despite external economic
pressures, the Polish debate on forest certification, which involved domestic stake-
holders such NGOs and the media, allowed for an easing of the tensions between two
alternative certification schemes. It proved that the GAL principles—among which
transparency and participation are often considered to be of top priority65—serve to
57
Id.
58
Id.
59
The Forest Stewardship Council (FSC) Poland website, http://pl.fsc.org/fsc-polska/ (last visited Feb. 20, 2015).
60
FSC Polska, Zasady, Kryteria i Wskaźniki Dobrej Gospodarki Leśnej w Polsce [The Principles, Criteria and
Indicators of Good Forestry Economy in Poland] (June 2010), available at http://pl.fsc.org/files/FSC-
Polska_Zasady_Kryteria_Wskazniki_2010.pdf (last visited Feb. 20, 2015).
61
Id., Principle 1.
62
Piotr Paschalis-Jakubowicz, Forest Certification in Poland, in Confronting Sustainability: Forest Certification
in Developing and Transitioning Countries 235, 252 (Benjamin Cashore, Fred Gale, Errol Meidinger &
Deanna Newsom eds., 2006).
63
Id. at 236.
64
Id.
65
Kingsbury & Donaldson, supra note 38, ¶¶ 28–40.Global administrative law through the Polish lens: From practice to theory 167
legitimize the norms. In the case of forestry, this would mean the inclusion of local
communities in the decision-making and in the program implementation process.
This issue was of paramount importance for the successful introduction of the cer-
tification process in Poland.66 Certification was perceived as a sign of the openness of
the forest management system to public scrutiny, as a remedy for errors committed in
forestry, and as an answer to the postulates formulated by numerous NGOs.67 It also
became a method of communicating forestry concerns to society. Social capacity for
environmental learning was strengthened. The sale of lumber became easier, as certi-
fication helps to ensure that the requirements of buyers are met without significantly
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affecting the price of wood.68
GAL underscores the actual role of governing bodies in the process of rulemaking.
The theory makes it clear that the real center of regulation may be located not where
it formally belongs but outside the public sphere. This displacement occurs when two
factors come together: market requirements and effective lobbying. The FSC was very
successful at convincing the Polish authorities to have the state forests certified, but
certification was first of all the requirement of the global market to which Poland is
integrated. Moreover, eco-labels have their market value. GAL emphasized the inter-
play between international public organs and their relations with private standard-
izing bodies, which is sometimes difficult to define.69 This is also why the GAL doctrine
postulated transparency.70 However, one may still question the indispensability of
GAL in addressing those legal problems. The Polish doctrine of public law proposed an
explanation of forest certification requirement, implementation of quality norms and
sports governance using a “pragmatic approach” which can be based on preexisting
concepts without having to invoke GAL.
2.4. GAL and the pragmatic approach
The interest of Polish lawyers in the concept of GAL was mostly the result of practical
problems such as those described Sections 2.1, 2.2, and 2.3. For almost three decades,
Poland was unable to regain its position in European football. This situation required
a systematic reorganization of the Polish football management. As a self-governing
body, the Polish Football Association manifests an inability to self-reform. Therefore,
an intervention by the government was needed and demanded by the Polish society.
At the same time, public money and public involvement became the condition for co-
organizing Euro 2012. The Polish inability to change and fight corruption in its ranks
was closely tied to the pressure FIFA and UEFA exerted on the autonomy of sports
associations. Radical reform was possible but it would have provoked a temporary sus-
pension of the Polish national team, clubs, and referees. The price for breaching the
requirements of international sports federations seemed too high; and so it was not
as a result of legislative inability, but due to political and economic calculation. The
66
Paschalis-Jakubowicz, supra note 62, at 240.
67
Id. at 246.
68
See id. at 253–255.
69
See Meidinger, supra note 55, at 57.
70
See Kingsbury et al., supra note 1, at 17.168 I•CON 13 (2015), 156–179
creation of the Governmental Advisory Committee within the Internet Corporation
for Assigned Names and Numbers shows the ability of states and the international
community to submit private or semi-private bodies operating beyond national bor-
ders to public scrutiny.
The incorporation of ISO standards or forest certification is a result of references in
Polish law or European law. It is a consequence of trade liberalization which requires
harmonized quality standards. The real problem seems to be the practical difficulty in
shaping standards jointly with the affected subjects or their representatives to secure
their present or potential interests. This problem is relevant mainly to developing
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countries, but it also affects Poland. The lack of cooperation in standard setting results
from the absence of high-level experts in many technical areas and from limited eco-
nomic means. The technical standards are thus shaped by leading economies which
draft them according to their needs and interests. Even though the wood certification
program was well received in Poland, it was in fact imposed by international players
active in the lumber business. Ignoring FSC certification would have led to economic
losses for the Polish wood industry, which would lose its capacity to sell materials to
the largest companies present in its own market.
The “privatization” of public tasks and their regulation did not take place with-
out the participation, or against the will, of public authorities. The national legisla-
tor consciously references international regulations. The Polish Act on Sports makes
the creation of a new Polish sports association contingent upon membership in an
international sport federation recognized by the International Olympic Committee.71
The Polish Committee for Standardization regularly publishes regulations adopting
ISO standards.72 The standards of forest certification are referenced in environmental
programs of local authorities.73 Those standards are also introduced into EU law74 and
international agreements adopted between the EU and third states.75 Obviously, the
absorption of private/voluntary standards into the Polish legal system, or into any
other national legal system, is a sovereign decision, but it is determined by the require-
ments of the global market and its legal implications. The activity of institutions
71
See Act on Sports, supra note 22, art. 11(2)(4).
72
Ustawa o ogólnym bezpieczeństwie produktów [Act on general product safety], Dec. 12, 2003, 229 Dz.
U.2275, art. 6(4) (2003), later amended.
73
Program Ochrony Środowiska dla Gminy Gorzyce na lata 2009–2012 z perspektywą na lata 2013–
2016 [Program of environmental protection in the Community of Gorzyce for 2009–2012 with a per-
spective for the years 2013–2016], Dec. 17, 2009, Resolution No. XLII/285/09, 56 Dziennik Urzędowy
Województwa Podkarpackiego 1185 (2010).
74
Commission Decision of June 7, 2011 on Establishing the Ecological Criteria for the Award of the EU
Ecolabel for Copying and Graphic Paper, 2011 O.J. (L 149) at 12; Commission Decision 2012/448/EU
Establishing the Ecological Criteria for the Award of the EU Ecolabel for Newsprint Paper, 2012 O.J. (L
202) at 26.
75
Voluntary Partnership Agreement on Forest Law Enforcement, Governance and Trade in Timber
Products into the Community, EC–Ghana, Mar. 19, 2010, 2010 O.J. (L 070) at 3; Voluntary Partnership
Agreement on Forest Law Enforcement, Governance and Trade in Timber and Derived Products to the
European Union, EU–Republic of Congo, Apr. 6, 2011, 2011 O.J. (L 092) at 126; Voluntary Partnership
Agreement on Forest Law Enforcement, Governance and Trade in Timber and Derived Products to the
European Union, European Union–Republic of Cameroon, July 19, 2012, 2012 O.J. (L 191) at 103.Global administrative law through the Polish lens: From practice to theory 169
generating GAL regulations can be explained not as resulting from violations of the
principle of “conferred powers,” but rather as resulting from the significant influence
of formally non-binding rules and the acceptance by states, for utilitarian reasons, of
the effects of the activity of certain non-governmental organizations.76
The activity of entities such as UEFA, ISO, or FSC raises questions about their legitimacy
and accountability as de facto regulatory powers in Poland and other states. GAL provides
an important theory in that regard. However, as an academic theory, it remains in competi-
tion with alternative explanations. For example, the International Law Association’s (ILA)
report on the Accountability of International Organizations concluded with remarks very simi-
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lar to the theory of GAL, while using the terminology of international law.77 Moreover, as a
theory, GAL raises doubts about the understanding of its fundamental concepts.
3. The theory of global administrative law
Reflection on global problems, including law, necessarily starts out from a specific
worldview. It is not conducted in isolation but draws on the local legal tradition and
culture and is rooted in a particular legal order.
One of the critiques of GAL pointed out that its perception of the legal system, the
sources of law, and legal methodology were marked by a strong predominance of
American philosophy of law.78 Starting with the latter, the analysis of GAL is mostly
based on induction: a study of case law, which should lead to a homogenous theory.
GAL covers most of the subject matter addressed by the jurists in the nineteenth
and twentieth centuries under the rubric of international administrative law.79 In
Polish scholarship, Jerzy Langrod, following, inter alia, Neumeyer’s and Haas’s work,
remarked that international law encompasses many fields of activity of clearly admin-
istrative nature, for example related to railways, postal service, telegraphs, airways,
rivers, social care, labor, weights and measures, sanitary issues, intellectual property,
immigration etc. This international administrative law is a part of international law
because of its sources (international agreements) and entities ensuring its enforce-
ment (international organizations), but its object implies an administrative character
of regulations.80 Based on a similar observation, GAL synthesized the activities of var-
ious types of institutions into five types of global administration, listed at the begin-
ning of Section 2.81 As Kingsbury and Donaldson recognize, global administration is
76
Kwiecień, supra note 3, at 302.
77
International Law Association (ILA), Accountability of International Organisations (2004), at 12–15, avail-
able at http://www.ila-hq.org/download.cfm/docid/6B708C25-4D6D-42E2-8385DADA752815E8 (last
visited Feb. 20, 2015); the recommendations contained, inter alia, the principles of transparency in both
the decision-making process and the implementation of institutional and operational decisions; partici-
patory decision-making process; access to information; reporting and evaluation of the international
organization; stating the reasons for decisions of particular courses of action which may contribute to
the creation of legitimate expectations; procedural regularity, objectivity, and impartiality.
78
Dubin, supra note 9, at 96.
79
Kingsbury & Donaldson, supra note 38, ¶ 1.
80
1 Jerzy Langrod, Instytucje prawa administracyjnego. Zarys części ogólnej [Institutions of Administrative Law.
An Outline of the General Part] 61–65 (1948), quoting extensively German, French, British, American,
Russian, and Italian literature on the subject. See also Cybichowski, supra note 5.
81
Kingsbury et al., supra note 1, at 20.170 I•CON 13 (2015), 156–179
fragmented and diverse.82 Non-American lawyers may have difficulties in perceiving
the unity of GAL, which, due to its case law methodology, encompasses numerous
normative subsystems as one legal order (Section 3.1).
According to GAL supporters, the shift between “international administrative
law” and GAL relies on the non-exclusively international and non-exclusively pub-
lic character of administrative regulations. The active participation of citizens at the
extraterritorial level turns the dichotomy between national and international legal
orders into a continuum,83 thereby blurring the distinction between private and pub-
lic legal spheres.84 Special emphasis is put on the “subsidiary legislation”—a non-leg-
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islative rule-making activity of national or transnational bodies.85 GAL analyzes the
functioning of existing principles and postulates the applicability of certain rules to
global administrative bodies. Most of these rules are of a procedural nature, for exam-
ple transparency and procedural participation, reasoned decision-making, review
mechanisms; while others are substantive, such as proportionality and means–ends
rationality.86 Due to the lack of rules of recognition, clear criteria for entry, or a rela-
tion to preexisting subject matter—there are difficulties in perceiving GAL as a distinct
legal body. It is more useful as a legal theory (Section 3.2). Similarly, its “administra-
tive” character needs to be translated (Section 3.3). The sources of GAL can be derived
from outside international public law and may be found in national legislation. The
mentioned features raise questions related to GAL’s distinctiveness. Moreover, as
GAL’s sources are not exclusively binding, the American “realistic” vision of law and
legal sources should be reviewed and explained to European lawyers (Section 3.4).
3.1. The coherence of global law
The legal dimension of globalization has been analyzed by a number of scholars and
legal theorists. They sought to relate the preexisting concepts of a given legal sys-
tem to new phenomena. One of the attempts related to the Kelsenian theory. In its
static version, norms result hierarchically from each other, depending their content.
Such a model would require an assumption of the existence of the globally shared
Grundnorm (basic norm)87 what contradicts the coexistence of conflicting norms in
particular legal subsystems. Even a dynamic version of the Kelsenian legal system is
not appropriate: it assumes that Grundnorm predefines a “fashion of its creation,” a
“norm-creating fact”—a certain method of lawmaking. Satisfying the requirements
of this dynamic interpretation of Kelsen’s theory would help determine which norms
belong to the legal system.88 Such an assumption would in turn require the existence
82
Kingsbury & Donaldson, supra note 38, ¶ 20.
83
See Sabino Cassese, Administrative Law without the State? The Challenge of Global Regulation, 37 N.Y.U.
J. Int’l L. & Pol. 663, 684–685 (2005)
84
Kingsbury & Donaldson, supra note 38, ¶ 1.
85
See Kingsbury et al., supra note 1, at 17.
86
Id. at 37–41.
87
Hans Kelsen, Pure Theory of Law 195 (The Lawbook Exchange 2002).
88
Id. at 197. As Kelsen has put it: “[a] norm belongs to an order founded on such a basic norm, because it
was created in a fashion determined by the basic norm—and not because it has certain content” (id. at
197). He further provides an example of norms created by custom which are valid not because of their
content, but because custom is a norm-creating fact.You can also read
