The Concept of International Law Reform and the Case of Negotiated Settlements in Foreign Bribery Matters

Abstract The concept of reform is present in its absence in the literature on international law-making and legal theory. The international legal system is subject to pressures for change. Its actors respond to those pressures with projects for legal improvement. Scholars comment on those malfunctions and attempted fixes, some elaborating general frameworks for appraisal, others conceiving of transnational law-making processes and yet others deconstructing the very discourse of international legal progress. However, as a group, international lawyers have baulked at the concept of reform. That aversion has been attributed to our discipline’s defensive posture and the international legal system’s lack of machinery for efficiently replacing outdated principles and rules. ‘Reform’ implies an admission of deficit and an orderly and authoritative change process that would not seem to be in keeping with typical pathways of legal change beyond the state. This article seeks to reverse that trend by proposing a two-part concept of international law reform. The procedural part of this concept enables legal scholars to discern and describe instances of quasi-legislative change in the international legal space. The substantive part prompts them to select and apply criteria for assessing the merits of a particular textual change or proposal. The resultant concept of international law reform is necessary, I argue, in a legal system that lacks centralized legislative processes and comprehensive rules for demarcating and legitimating authoritative normative developments. Through a detailed case study from international anti-corruption law, the article shows how international law reform is an essential framework for analysis.