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"Africa" as a new frontier? Lawyers, extractive economies and global reconfigurations of political authority

Workshop

20-21 June 2016

Goethe-University Frankfurt am Main, Campus Westend
Gebäude "Normative Ordnungen", EG 01
Max-Horkheimer-Str. 2, 60323 Frankfurt am Main

Limited participation, please register with Sara Dezalay: This email address is being protected from spambots. You need JavaScript enabled to view it.  

Presented by:
Cluster of Excellence "The Formation of Normative Orders"

20.6.2016: 13h30-18h
21.6.2016:  8h45-16h45

Workshop description:
With the 2008 global financial crisis and Chinese economic growth, the African continent has reemerged as a source of mineral riches, a boon for the expansion of global markets, and a new site of legal globalization.  This workshop looks at this renewed prominence of the continent as an opportunity to assess the relationship between capital investment, politics, and law in these transformations. The boon of extractive economies on the African continent - oil and mining industries, and related infrastructure and land projects, from pre-colonial eras to the present (e.g. Ellis 2012) -makes those a paradigmatic site to explore the history of the uneven and unequal connections between Africa and the world (Cooper 2014). Conversely, legal practices and institutions are a core dimension connecting political and economic institutions at the domestic level, with financial and mineral markets - as well as economic, political and social justice at the global level.

Under the expansion of the global regulatory framework over deals between foreign investors and states in Africa - including the growing reach of the 1977 US Foreign corrupt practices Act (FCPA) against US and European companies operating in Africa - lawyers are playing increasing roles to negotiate extractive contracts as well as to help states reform mining codes and taxation regulations, advise foreign companies against adverse political, social and economic effects in their deals on the continent, and increasingly local populations in their contests over the legitimacy of mineral contracts for social justice and development. Yet - the technicality, complexity, and for the most part, opacity of these legal practices open a tantalizing trap for scholars engaged with these dynamics.

Discussions on law and lawyers in contemporary Africa tend to reflect the protracted political and development ‘dependency’ of the continent. The position of Africa in globalization is overwhelmingly construed as one defined by exclusion and marginalization, with Africa hailed as a foil for European capitalist history (Cooper 2014). Debates on the ‘resource curse’ link the vulnerability of resource-rich African economies to the weakness of domestic governance mechanisms (e.g. Collier 2007) and the desirability of governing trade and financial flows globally (e.g. Rich & Moberg 2015). Yet - there is still an exceptional knowledge gap on legal professions in Africa that contrasts with the abundant literature on the contributions of lawyers to political and economic change in the US, Europe, Latin America and more recently in Asia (see Politique africaine 2015). Indeed, seemingly on a par with the ebb and flow of policy orientations and geostrategic interests over the continent, lawyers in Africa overwhelmingly appear under two contrasting guises. They are either denounced as mercenaries at the service of new forms of colonial ‘looting’ (e.g. Burgis 2015) or idealized as a professional corps defending the rule of law (Halliday et al. 2012). The failure of the legal systems inherited from colonization (see World Bank 2003) is coupled with the need to reform - if not reinvent - political, legal and economic institutions so as to check the tendency towards personal, tyrannical and anti-entrepreneurial governance (Acemoglu & Robinson 2001).

Yet - the thriving of private foreign investments in the very countries hailed as ‘failures’ (Ferguson 2006) opens a much more complex image than the mere economic dependency of the continent - notably with the expansion of a ‘Beijing consensus’ freed from political conditionality and outside the scope of US imperial politics (Halper 2012). Further, these images of the law and lawyers not only reflect a gap between practice and scholarship – they are also dis-connected from the long durée of the transformation of the interaction between power and economics on the continent, regionally and domestically. Legal historians have underlined the centrality of law in the expansion of European colonial Empires  (e.g. Benton & Ross 2013; Ibhawoh 2013). Underscoring the connections between successive and competing imperial models (e.g. Bertrand 2015, 2008) they have also opened paths to explore the instrumental role played by lawyers and legal institutions not only as vectors of domination and globalization - to connect the products of economic exploitation - be it slaves, crops or minerals - to global markets, but also in the transformation of power and social hierarchies in the colonial states and the métropoles. This has given way to recent scholarship highlighting the contributions of lawyers as brokers connecting imperial legacies with contemporary transformations of the state (S. Dezalay 2015; Gobe 2013). But there is still a need to further document, explore and explain how the diverse colonial economic extractive models (e.g. merchant, corporate or state led, see Breckenridge 2011) were sanctioned by specific legal, social and political institutions; and how legal practices in contemporary extractive economies reflect and depart from these legacies.

In the face of these knowledge gaps, the core purpose of this workshop is to foster dialogue between scholarship and practice on these issues of high policy relevance - as they hinge on the transformation of political authority and the global allocation of resources, financial flows and shifts in North-South relations. To reflect the complexity of extractive economies and associated legal practices - but also the diversity of colonial and postcolonial paths in Africa -, this dialogue also needs to be cross-disciplinary. Connecting law, political science, economics, and development scholarship with legal history and anthropology is key to assess the impact of past historical processes into the present, including to trace the genealogy of scholarly categories on the state, law, and the market on the African continent (Steinmetz 2013).

This workshop articulates this objective as a need to combine focal lengths (see Cooper 2014): by zooming in onto the specificity of legal practices surrounding extractive economies and by zooming out so as to situate these practices within wider historical and geopolitical shifts. Three sets of related and open interrogations will be explored:
How is the extractive economy in African national contexts bound up with social, legal and political developments at the domestic level?
How, in turn, are the global distribution of capital flows and the structure of global mineral markets connected to global regulatory frameworks and contracting practices, as well as (trans)national dispute resolution processes?
Lastly, how are the structure and logics of extractive economies affected by and impacting on legal globalization patterns, in particular the global expansion of corporate law into Africa?

Organized in three panels, discussions will explore legal practices in extractive economies in their diverse dimensions at the domestic and international level, and across time: in the transformation of the relation between power and economics in the trajectory of the state; in the connection between the evolution of mineral markets in the successive phases of globalization from colonial Empires to the present, with regulatory frameworks, contracting and disputing practices; and, lastly, in the transformation of the markets for legal services and legal globalization patterns across the continent.

Workshop Programme:

20 June: 1.30 pm – 6pm

1.45 pm -2.30 pm:

Opening keynote: Imperial trajectories and legal transfers
Romain Bertrand (director of research, Centre de recherches internationales (CERI), Sciences-Po, Paris)

3 pm-6 pm:
Panel 1: Extractive economies and state transformations
This first panel looks at the contributions of law and lawyers to the transformation of the connection between economics and power in the historical trajectory of the state. The image of the ‘gatekeeper state’ (Cooper 2004) is a useful entry-point to look at this evolution both inside – in the legal, political and social ramifications of extractive economies at the domestic level – and outside, in the relation between resource-rich states with global markets, development institutions and foreign corporations. At stake is the understanding of the specificities and transformation of extractive economies themselves and their legal, political, social dimensions. For example, the logic of ‘ring-fencing’ the oil industry in Angola, away from the wider economy of the state (see Ferguson 2006) contrasts with the economic path taken in South Africa from the turn of the twentieth century (see Breckenridge 2011), which has articulated tightly the exploitative dimension of extractive industries with a wider social development project. How is this reflected, articulated, and contested in the ‘development’ capacities of the state? How, furthermore, are colonial economic paths – e.g. between merchant, corporate or state dominated extractive industries connected to specific colonial legal patterns? How are those in turn ‘revived’ (Dezalay & Garth 2010) in the contemporary political economy of the state?

Chair and discussant:
Prof. Ute Röschenthaler (Cluster of Excellence "The Formation of Normative Orders", Goethe University)
Prof. Sol Picciotto (Emeritus, Lancaster University)

Panelists:
Prof. Ambreena Manji, Cardiff School of law and politics
Bertram Turner (Senior Research Fellow, Max Planck Institute, Halle)
Prof. Keith Breckenridge (University of the Witwatersrand - Skype participation)
John P. Williams (Duncan & Allen)
Prof. Heinz Klug (University of Wisconsin Law School)

21 June: 8.45am-5pm

9am-12pm
Panel 2: Minerals between global markets, regulatory frameworks and transnational legal practices
This second panel expands the focus towards the connection between power and economics at the international level, from colonial Empires to the present phase of globalization. What are the roles of lawyers in the negotiation of contracts, the resolution of disputes between states and corporations? How is the nature of contracts as sui generis forums, combining domestic and international law, and at times innovative legal techniques (e.g. Lhuilier 2013) impacting on capacities for legal empowerment and action – at the domestic, regional and global levels? In particular, how is the transnational dispute resolution system responding to growing contests over the societal and developmental dimensions of extractive contracts? Current discussions at the level of the African Union for the codification of a ‘Panafrican’ investment code are further shifting the focus towards ‘South-South’ contests over the structure of the present investment and regulatory framework. Are there alternatives emerging - ‘Chinese’, ‘Indian’ or ‘Brazilian’? What are the regional patterns emerging within the African continent?

Chair and discussant:
Prof. Stefan Kadelbach (Cluster of Excellence "The Formation of Normative Orders", Goethe University)
Prof. Isabel Feichtner (Goethe University)

Panelists:
Prof. Peter Rosenblum (Bard College)
Prof. Makane Mbengue (University of Geneva)
Prof. Gilles Lhuillier (Fondation Maison des Sciences de l’Homme)
Dr. Florian Favreau (École normale supérieure Rennes)

12pm-1pm: lunch break

1pm-4pm

Panel 3: Extractive economies, domestic legal markets and legal globalization
This last panel zooms in onto legal markets and their transformations on the continent. What is the role played by lawyers and legal institutions in the penetration of transnational capital at the domestic level? The wide move (marketed and real) of predominantly US, UK and French law firms into the continent in the last ten years is raising the question of access into African legal markets and the types of legal work this involves. How is the relationship between international law firms and domestic law firms evolving? How does this legal globalization compare with other emerging and developing economic settings, in Asia, Latin America (see in particular the Globalization, Lawyers, and Emerging Economies project at Harvard law school Center on the Legal profession)? How is it impacting on and reflecting the specificities of extractive economies?

Chair and discussant:
Dr. Stefan Kroll (Goethe University)
Prof. Bryant G. Garth (University of California, Irvine School of Law)

Panelists:
Dr. Sara Dezalay (Cluster of Excellence "The Formation of Normative Orders", Goethe University
Dr. Swethaa Ballakrishnen (New York University Abu Dhabi)
Prof. Jeremy Gould (University of Jyväskylä (TBC)
Prof. Jonathan Klaaren (University of the Witwatersrand)
Prof. Jayanth Krishnan (University of Indiana, Maurer School of Law)

4.15pm-4.45pm
Closing remarks

Presented by:
Cluster of Excellence "The Formation of Normative Orders"