UNIVERSITY OF NAIROBI

FACULTY OF LAW
GPR 3203: ADMINISTRATIVE LAW I

LESSON 10: CHALLENGES PRESENTED TO ADMINISTRATIVE LAW BY THE

GLOBALIZATION PROCESS
Globalization “is a process of interaction and integration among the people, companies, and
governments of different nations, a process driven by international trade and investment and
aided by information technology.”1 The globalization “process has effects on the environment,
on culture, on political systems, on economic development and prosperity, and on human
physical well-being in societies around the world.”2
It is often stated that, today, we live in a ‘global village.’ As a result, countries strive to adjust to
developments at the global level so as to be ‘good global villagers.’
The globalization process has presented a number of challenges to Administrative Law. Five of
these challenges are:
1. Emergence of global administrative agencies

Over the years, many administrative agencies have emerged at the global level. These include the
World Trade Organization (coordinates international trade); the World Health Organization
(coordinates international public health and protection); the United Nations (facilitates
international diplomacy); the World Bank; and the International Monetary Fund. The concern,
therefore, is the extent to which these powerful global bodies practice good governance by
adhering to administrative law principles as they exercise their usually immense powers. This is
considering that the decisions and actions of these global bodies may have serious ramifications
on not only individual countries, but more so on persons residing in these countries. For
example, the World Trade Organization may bar developing countries from importing generic
HIV drugs in order to prevent infringement of the intellectual property rights of companies
(mostly found in developed countries) that developed the patented versions of those drugs. The
effect of the ban would compromise the lives of many persons living with HIV/AIDS in the
affected countries.

Daniel C. Esty studied the practice of good governance in policymaking by five international
administrative institutions: World Trade Organization (WTO); Organization for Economic
Cooperation and Development (OECD); World Health Organization (WHO); United Nations

1
http://www.globalization101.org/what-is-globalization/
2
Ibid
1
Environment Programme (UNEP); and North American Commission for Environmental
Cooperation (NACEC).3

With regard to the WTO, Esty observed, for example, that its policymaking was previously
criticized for its secrecy and favouritism towards the business community, 4 but it later committed
to openness and participation by, for instance, encouraging policy debate through its World
Trade Journal.5 In the case of the OECD, Esty noted, for example, that it generally practiced
good governance principles such as transparency and participation including publishing draft
policy statements.6

In relation to the WHO, Esty observed, for example, that it had ineffective decision-making rules
and structures including secrecy in its meetings and high influence of special interest groups in
its policymaking.7 In the case of UNEP, Esty noted, for example, that UNEP had a reputation for
infusing transparency and participation in its policymaking, but it had weak internal
administrative controls including rules against conflict of interest by its staff. 8 Finally, with
regard to NACEC, Esty noted, for example, that it had “a strong foundation on administrative
law based on principles of good governance” such as network-based decision-making,
information-sharing network, robust policy dialogues, and public participation opportunities,
despite dealing with the politically sensitive subject of environmental regulation. 9

Therefore, there is a need for a body of rules (global administrative law) to regulate the decisions
and actions of these global bureaucrats. Indeed, this body of rules has started to emerge. For
example, Daniel C. Esty argues that good governance and administrative law tools can
strengthen policymaking at the international level.10

He identifies a number of challenges that international institutions may face while making global
policies, which challenges mirror those faced by domestic administrative agencies, namely:

 Questionable democratic legitimacy because the bureaucrats are not elected directly by
the populace;
 Lack of accountability;
 Propensity to make mistakes; and
 Manipulation by special interests.11

3
Daniel C. Esty, “Good Governance at the Supranational Scale: Globalizing Administrative Law,” 115 Yale Law Review 1490 (2005-2006), at 1542-1560
4
Ibid, at 1544
5
Ibid, at 1545
6
Ibid, at 1548
7
Ibid, at 1552-1553
8
Ibid, at 1556-1557
9
Ibid, at 1542-1560
10
Ibid, at 1494
11
Ibid, at 1503
2
Esty added that adoption of principles of administrative law, such as procedural safeguards in
policymaking, will enable institutions “to achieve better results and bolster public confidence in
the choices they make and the policies they advance.”12

Today, administrative law enjoys a respectable status worldwide. 13 This shows the importance of
having sound legal standards and procedural safeguards. This will contribute towards upholding
and strengthening individual rights and ensuring just and fair processes when the administrative
agencies and citizens interact.14

2. Increase in the number and power of administrative agencies at country-level

One of the most significant developments of the past and present century is the expansion of
powers and authority of public administration, for example due to globalization and the
increasingly international political orientation.15 This has resulted in the centre of gravity of
power shifting from parliament to the executive. 16 As a result, huge amounts of power have been
vested in the executive, the authorities that are specialised in dealing with specific matters and in
experts who are able to react to rapid changes in circumstances or sudden emergencies. 17 This is
considering parliament’s usual slow, partisan, cumbersome, inflexible procedures.

Therefore, various types of administrative bodies have been established within countries and at
different levels of public administration.18 Further, due to globalization conditions such as
privatization of certain public functions, some private entities may start to exercise public law
functions. Therefore, the issue of concern is the extent to which these largely private entities will
be brought within the domain of administrative law in light of the implications of their public
law functions on the citizenry.

3. Increase in delegated law-making

Due to globalization, countries may find themselves the focus of interest from foreign investors
and economies.19 In order to meet this interest so as to attract foreign investment, a country may
have to adopt new legal standards that may only be achieved through implementation of many
laws.20 Consequently, parliament may end up delegating legislative power to the executive. 21
This may be because parliament lacks sufficient time to enact the many laws that are required, or
it may lack expertise to legislate a technical matter in detail. 22

12
Ibid, at 1495
13
Clauspeter Hill and Jochen Hoerth (ed), Administrative Law and Practice from South to East Asia, Konrad Adenauer Stiftung, 2008, at 23
14
Ibid
15
Ibid, at 21
16
Ibid
17
Ibid
18
Ibid, at 22
19
Ibid
20
Ibid
21
Ibid
22
Ibid, at 21
3
Indeed, strengthening the authority of the executive is clearer in the context of executive law-
making, which at common law is generally known as delegated or subsidiary legislation. 23 A key
concern with delegated legislation, including in Kenya, is the extent to which delegated
lawmakers practice good governance in delegated lawmaking. 24 This will, for example, require
delegated lawmakers to act intra vires, transparently and infuse public participation in
lawmaking.

4. Conflict between international and local standards of administrative law

Many times, countries will be required to adopt new laws and standards, or reform existing laws
and standards, in order to meet the demands of globalization. For example, globalization expects
competitiveness, transparency, merit and non-discrimination in the appointment of public
officers. However, the unique circumstances of a country such as its ethnic diversity may justify
‘positive discrimination’ in the making of public appointments. In such a case, there will be a
clash between global and local standards. Where such a clash is serious, then there may be
ramifications on the standing of the concerned country at the global stage.

5. Impediments to access to justice

Access to justice is at the heart of administrative law, since persons aggrieved by administrative
actions should be able to seek and get appropriate relief and remedies, judicially or non-
judicially. However, access to justice may be frustrated especially at the global level because of
expense and unfamiliarity with global dispute resolution procedures. Further, aggrieved persons
may have to confront powerful administrative agencies in their quest for administrative justice.
For example, the Monaco-based IAAF (now World Athletics) revenue in 2019 was US$55
million, thus making it financially challenging for a common aggrieved athlete to fight IAAF’s
administrative action against them such a ban for alleged doping. Also, notions of justice may
differ from among jurisdictions, such as different standards in common law jurisdictions (e.g.
adversarial-based) vis-à-vis civil law jurisdictions (e.g. inquisitorial-based).

23
Ibid, at 23
24
Apollo Mboya, Curb Abuse of Delegated Legislation by Executive, The Standard newspaper, January 23, 2014
4