The Organization for Economic Cooperation and Development (OECD) has played, and continues to play, an important and largely unrecognized role as a lawmaking body. The OECD occupies a unique space in the international lawmaking field, in large part because it was not established with lawmaking as a priority. In a small number of cases, however, it has played a significant role in crafting the emerging architecture of global governance. Case studies of the hazardous waste trade, the Bribery Convention, and the OECD Guidelines for Multinational Enterprises are presented to demonstrate a clear pattern. A topic of major concern arises on the international stage, such as hazardous waste trade, bribery, or corporate conduct. Efforts within the United Nations or other international organizations to draft an agreement are unsuccessful. The OECD proceeds on its own and provides an agreement that serves as the basis for future negotiations in fora with wider membership. The keys to this approach are opportunism and path dependence. The OECD serves as an advantageous forum to host negotiations, in part because of its significant technical expertise, in part because of its membership of like-minded countries, and in part because of its closed proceedings. This can be a very effective strategy to provide the tracks on which the train of international agreements proceeds. But it does not always work. A case study on the Multilateral Agreement on Investment explores the OECD’s greatest failure in international lawmaking.
James Salzman, The Organization for Economic Cooperation and Development’s Role in International Law, 43 George Washington International Law Review 255-276 (2012)
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