This chapter introduces the concept of regulatory contestation as a lens for analysing the development of transnational normative orders. It critiques mainstream conceptualisations of regulation in International Relations (IR) and international law as unnecessarily narrow and advances a broader definition of regulatory governance as actions that steer the flow of events towards specified regulatory goals. This definition allows for the analysis of the creative and generative function of regulation and shows that the process of regulatory contestation facilitates the mediation of international norms into varied social and political contexts. Studying regulatory contestation provides insight into the power dynamics that are shaping fundamental institutions of international order at a micro-level. The chapter illustrates this process through a case study of the accountability turn in the implementation of human protection norms. The recent proliferation of juridical and institutional mechanisms to prevent, protect and prosecute mass violations of human rights is indicative of an emergent transnational human protection order. It applies the lens of regulatory contestation to these global efforts. It concludes by considering the value of regulatory contestation as an analytical lens in IR, contributing to an understanding of constitutive processes that build transnational normative orders.

Fiduciaries frequently confront transnational situations. Lawyers – an archetypal class of fiduciary – have long counseled participants in cross-border transactions and conducted their own activities transnationally.1 Financial institutions – firms that often act in a fiduciary capacity2 – have provided products transnationally for centuries.3

There are vexing puzzles about one of the most comprehensive, far-reaching, most deeply penetrating and punitive of TLOs: anti-money laundering (AML). Despite its seemingly successful institutionalization, the AML TLO exhibits many deficiencies and imposes extensive costs on the private and public sectors, and harms upon the public. Given these failings, what explains its persistence? Could it also be the case that the pervasiveness and penetration of the AML TLO indicates it may constitute a particular species of “disciplinary” TLOs? Drawing on an intensive study at a moment when the TLO’s governing norms and methodologies of implementation were undergoing revision and expansion, as well as on observation and participation in AML/CFT activities over three decades, the chapter brings rich empirical evidence to address these questions: first, by briefly sketching the thirty-year development and workings of the AML TLO; second, by considering its benefits, costs, deficiencies and harms; third, by appraising explanations for its persistence, including the fact that it (1) works in some degree, (2) harms are felt most by weak domestic actors, (3) costs are largely hidden from the public, (4) the TLO has surface plausibility, (5) it is difficult to critique a TLO that purports to control terrorism, and (5) it is sustained by geopolitics; and, fourth, by arguing that the AML TLO may be distinctive insofar as it is a disciplinary TLO. Those singular properties may in fact be shared substantially by other TLOs directed at crime. The site of criminal justice thereby encourages a more differentiated understanding of TLOs in 21st century settings.

In Jessup’s 1956 Storrs Lecture he defined transnational law as “all law which regulates actions or events that transcend national frontiers,” which includes public international law, private international law, and “other rules which do not wholly fit into such standard categories.” Considerable recent scholarship on transnational law has focused on that residual category of “other rules” and their “private” character. There has, however, been a revolution in international law itself since 1956, reflected in a proliferation of international institutions, international courts, treaties, and so-called “soft law” technologies of governance. This chapter assesses the role of international law in the creation of what can be viewed as “transnational legal orders” that penetrate and imbue state law, shape social identity, and inform public and private legal practice. International law, this chapter contends, is even a more important shaper of the transnational than in Jessup’s time, and, in turn is shaped by it.