Private power and international law : the international swaps and derivatives association

Abstract

International lawyers have traditionally been interested in public power, i.e. ability to influence substantive outcomes across national borders through state coercion or threat thereof. They have been (and continue to be) engaged in debates about ways in which that type of power can be limited or, at the very least, made accountable. More recently international lawyers have also developed an interest in private power, i.e. ability to influence substantive outcomes across national borders without the use of state coercion or threat thereof. This paper explains how accountability for exercise of private power is achieved using the International Swaps and Derivatives Association (ISDA) as an example. ISDA’s accountability consists of a combination of procedural Global Administrative Law-like standards applicable to ISDA itself as well as legislative, regulatory and judicial recognition of the market conventions developed by ISDA. This model of accountability makes ISDA responsive to both cosmopolitan and national constituencies.