Legal Professionals and Transnational Law-Making: A Case of Distributed Agency

In institutional theory, it is a challenge to explain how rule-setting occurs in transnational contexts with high rule ambiguity and distributed agency. In this article, we address this problem by arguing that emergent and deliberate institutional strategies, though often treated as exclusive opposites, need to be considered in concert. This is demonstrated by analysing transnational law-making in the context of commercial and corporate law. Transnational law-making is thereby conceived as a process driven by the practical problem-solving and sense-making efforts of legal practitioners in large international law firms and international legal associations. Focal actors can exploit the results of this process to deliberately influence the development of law. A concept of two nested cycles of incidental and strategic law-making is employed to explain how dominant influences of common law become interwoven with influences from multiple other legal traditions that eventually trickle up. This article highlights the role of professionals as practice-based experts engaging in practical and political actions, the effects of which shape transnational rule-setting.