This article argues that the rise of transnational regulation has a transformative impact on law. It examines the field of transnational environmental regulation to show that its proliferation challenges the continued appropriateness of representations of law as (i) territorial, (ii) emanating from the state, (iii) composed of a public and private sphere, (iv) constitutive and regulatory in function, and (v) cohesive and regimented. Instead, law is increasingly perceived as (i) delocalized, (ii) flowing from a plurality of sources, (iii) organizationally inchoate, (iv) reflexive and coordinating in function, and (v) polycentric. Together, these shifts in perception amount to a transformation that the article identifies as the transnationalization of law. The article then explores three responses to the transnationalization of law. It distinguishes responses motivated by a desire to reclaim the traditional conception of law from those that seek to reconstruct law at the transnational level and responses that advocate a context-responsive reconceptualization of law. Each response, it will be shown, creates a different set of opportunities for, and challenges to, the relevance of law for transnational regulation.

This article examines the manner in which ‘macro’ legal analysis can potentially assist in overcoming some of the issues that are faced in the understanding and development of global environmental governance (GEG). It argues that the analysis of law through separate and distinct disciplines – such as environmental law, trade law, corporate law, and human rights law – results in what this article refers to as ‘micro’ legal analysis. As such, it contends that this can have the effect of creating obstacles in the development of coherent and effective legal and policy choices related to the protection of the environment. It illustrates these arguments with examples of practical problems that have arisen from the separation of legal issues in practice and provides the theoretical underpinnings, based on the critique of international lawyers, for the application of ‘macro’ legal analysis. In other words, it argues for a form of analysis that would consider the entire range of relevant legal disciplines in a unitary process. It then provides a methodology for the development and application of ‘macro’ legal analysis in relation to environmental issues. Finally, it considers the potential that this approach could have within the field of GEG and comments on the implications that it could have for the way in which lawyers are trained in the future.

The work on ‘regime complexes’ – loosely coupled regimes linked through non-hierarchical relationships – provides a lens for understanding the increasing density of international rules and institutions. However, the role of private authority in the regime complex – situations where non-state actors set rules or standards that other actors adopt – has only recently received academic attention. In this article, we ‘unbundle’ the concept of the regime complex in two novel ways. Firstly, we argue that an accurate depiction of any regime complex must also include private authority. Secondly, using examples from environmental governance, we carefully elaborate four specific mechanisms through which public and private authority interact, demonstrating the ways in which private authority can improve the problem-solving capacity of regime complexes. In short, a full understanding of the contributions of private authority to solving environmental problems requires examining its interactions with public rules and institutions.

English common law and United Kingdom legislation provide various – overall liberal – jurisdictional grounds for hearing foreign tort claims. The article examines these grounds with reference to recent and ongoing oil pollution nuisance litigation involving Royal Dutch Shell Plc and its Nigerian subsidiary operating in the Niger Delta. Particular attention is given to the factors taken into account by the court in exercising its discretion to allow service out of the jurisdiction in cases of pollution taking place abroad under the principle of forum non conveniens. Following the widely commented decision of the United States Supreme Court in Kiobel v. Royal Dutch Petroleum Corporation, which ruled against the extraterritorial application of the Alien Tort Statute, it is easy to forget that the rules of jurisdiction vary from country to country and that different legal systems apply similar concepts in often radically different ways. Attention is also given to the future development of English jurisdictional law and practice in the context of environmental nuisance.

In the context of sustainable development, both developed and developing countries are implementing policies that encourage economic growth, environmental protection and social well-being in resource decisions. According to the 2012 Rio+20 Declaration, market-based instruments that complement regulations can offer an economically efficient push to sustainable growth. Market-based instruments, such as payments for ecosystem services (PES) and other market incentives, may play a crucial role in enhancing the livelihoods and wider well-being of poor people. However, for economic tools such as PES to prove valuable in managing natural resources, the decision-making and implementation processes must integrate adequate rights allocation and participatory mechanisms. This article examines forest ecosystem services in the context of the mangrove reserve forest of the Sundarbans in Bangladesh. It is a UNESCO World Heritage site and one of the largest remaining areas of mangroves in the world with an exceptional level of biodiversity. The article argues for a more realistic and equitable approach to PES projects in Bangladesh. It underscores the need for effective participatory tools, third-party monitoring and multi-service PES schemes to improve multiple mangrove ecosystem services in the Sundarbans.

Economic arguments in support of linking emissions trading schemes suggest that such linking could provide access to lower cost abatement options and increase market stability. The decisions of whether and how to link emissions trading schemes often focus on the design features of the relevant schemes, but an additional factor which has the potential to undermine the efficiency of linked schemes is taxation. This article systematically tests two alternative approaches to the direct (income) taxation of cross-border transfers of emission allowances for differential tax outcomes. Four hypothetical transactions are considered under three different linking mechanisms and on the assumption that a tax treaty based on the OECD Model Tax Convention on Income and on Capital is in force. This analysis evidences that, in some cases – and especially if the relevant jurisdictions adopt different approaches to the taxation of allowance transactions under domestic law – there is the potential for timing differences or double taxation that could impact on the efficiency of the linked trading schemes. It is therefore important for tax implications to be considered as part of any linking proposal.

This commentary is an update to an article in an earlier issue of Transnational Environmental Law (E. Couzens, ‘Size Matters, Although It Shouldn’t: The IWC and Small Cetaceans. A Reply to Stephenson, Mooers and Attaran’ (2014) 3(2) Transnational Environmental Law, pp. 265–78) on the treatment of small cetaceans by the International Whaling Commission (IWC). That article discussed an unsuccessful proposal submitted by Monaco, at the 64th meeting of the IWC in 2012, for a resolution on highly migratory cetaceans. Monaco renewed its proposal in 2014 and, on that occasion, did generate sufficient support for a resolution to give contracting parties to the International Convention for the Regulation of Whaling a mandate to initiate debate over small cetaceans in other fora. Following this IWC Resolution, in December 2015, the United Nations General Assembly included a clause proposed by Monaco in its Resolution on Oceans and the Law of the Sea. The nature of international law is such that it is difficult to force change without upsetting a delicate equilibrium. Monaco’s initiative, however, may provide significant momentum towards a solution for what remains the real and under-acknowledged problem that there is virtually no international law applicable to small and/or highly migratory cetaceans.