Chapter 5 sets out a functional comparative analysis. In this way, the recognition and enforcement approaches can be isolated from the context-specific domains and concerns which gave rise to them. This formalisation of comparison highlights doctrinal convergence, and the increasing transnationalisation of recognition and enforcement. At first glance, the degree of convergence is somewhat surprising given that each approach is grounded in a different underlying legal instrument, separated in time by many decades, epistemologically constituted by different international actors and stakeholders, and overseen or developed by different governmental or intergovernmental organisations, and, arguably, aimed at differing goals. However, read together with the historical and contextual analysis in the earlier chapters of this part, a shared core of recognition and enforcement practice can be distilled and compared. Doing so offers an initial basis from which to analyse the future of recognition and enforcement – both in terms of anticipating how existing approaches are likely to be interpreted or applied but also with respect to ways in which such approaches may develop or evolve over time.

Chapter 3 analyses the the broad-based and largely uniform judgments recognition and enforcement framework in place between a number of European States, referred to in this book as the ‘Brussels Model’. From a recognition and enforcement perspective, the chief success of the Brussels Model is in harmonising the laws of signatory States, so that each State, at least with respect to other signatory States, provides straightforward and expeditious recognition and enforcement of judgments.

The failure of democratic regimes to identify and confront the climate crisis is the outcome of the protracted yet incomplete defeat of critical reflexivity by instrumental reasoning. Historically, this is evident in the institutional and practical consequences of colonialism, militarism, and commodification. Political elites’ objectification of nature, of uncertainty, and of oppressed groups delimits normative scope of the climate crisis. By ignoring salient differences between the epistemic and ontological limits of these acts of objectification, elites place misguided faith in their capacity to control nature, exploit others, and convert uncertainty into risk. Lawrence first historicizes the inadequacies of collective responses to the climate crisis, then encapsulates salient differences between mainstream and critical approaches to this question. He subsequently details how a dependence upon militarism and GDP correlates with quantifying uncertainty and objectifying risk, while underplaying the ecological risks of both. He concludes by reflecting upon how strategies for seeing and knowing both democratic and ecological fragility and robustness can mutually inform each other.

This chapter explores the broader recognition and enforcement lessons that can be derived from transnational experience. In brief, I argue that although transnational recognition and enforcement approaches largely have their own distinct legal instrumentation and spheres of operation, they intersect in many significant respects, and can be said to be ‘transnationalised’. This is because they are drawn from a similar corpus of legal instrumentation and understanding, and developments in each approach have informed, and remain likely to inform, others.

Yearnings for political change – dormant for decades, suppressed by coercion and perceptions of unattainability – can suddenly appear realizable with the emergence of new stimuli and facilitating conditions. For a Fourth Wave of Democratization, which ended Communist rule in Europe, the Gorbachev-led fundamental change of the Soviet political system and of Soviet foreign policy was the crucial facilitator. There was a circular flow of influence, which began but did not end in Moscow, in which a liberalization that evolved into democratization in the Soviet Union acted as a stimulus to pressure from below in East-Central Europe. But the attainment of decommunization and national independence in those countries emboldened the most disaffected nations within the Soviet multinational state. The transformation of the Soviet political system was consciously sought by Gorbachev, but the fragility of the state in conditions of political pluralism became evident. The USSR was not in crisis in 1985 but fundamental reform led to crisis by 1990–91. Gorbachev’s embrace of political pluralism plus Yeltsin’s paradoxical demand for Russian independence from the Union led to the Soviet breakup. Even apparently consolidated political orders, America’s included, are potentially fragile, as Trump’s attempted subversion of US democracy, with Republican Congressional backing, has underlined.

This chapter criticizes the strand of recent political science and political theory that claims liberal democracy is under threat from illiberal populism and that this is a wholly unique phenomenon of the present rather than part of recurrent crisis of liberal democracy tied to the political sociology of the Schumpeterian competitive party model. Viewed this way, this crisis is in fact a result of the failure of liberal democracy to offer citizens a defensible principle of legitimacy based on a robust notion political equality, the core principle of democracy. Precisely, what appears to be the source of its robustness, the competitive process of parties and politicians for the popular vote is—when viewed as a recurrent struggle to bring this model back under the control of citizens—the very source of its frailty. The dichotomy liberal democracy-populism blinds us in assessing the actual developments arising from the fragility of liberal democracy. Indeed, it may inform responses that will lead to outcomes quite at odds with the original intentions of those who deploy it.

This chapter introduces the book, situating it in the context of the most closely related literature.

This chapter explores the differences between the different systems foundational moments, with reference both to the systems initial formations, and various key moments of inter-state engagement through which they have been reshaped over time.

Chapter 2 traces the emergence and approach of ‘global’ recognition and enforcement. These approaches are now instrumentally bifurcated, premised upon whether a decision that is to be recognised or enforced is a product of a particular dispute resolution mechanism (arbitration or litigation), and whether an exclusive choice of court has been made (or, failing such a choice, the ‘default’ operation of jurisdictional rules). The reasons for doing so are explored in the context of the modern negotiations at the Hague Conference towards a harmonised private international law approach to the recognition and enforcement and judgments. The end product of these negotiations are, of course, the 2005 Choice of Court Convention and the 2019 Judgments Convention. In terms of their international reach and acceptance, these conventions are in an embryonic form compared to widely implemented “backbone” of arbitration recognition and enforcement (in the 1958 New York Convention).

Due to the operation of territorial sovereignty, a foreign decision has no extraterritorial reach unless and until it is given effect by an enforcing court (on behalf of the enforcing State). Although many enforcing courts regularly recognise or enforce foreign decisions, this state practice is not considered specific enough to create binding rules of customary international law mandating enforcement or recognition.1 This is so despite recurrent arguments that giving effect to foreign decisions ought to be considered a matter of customary international law.2 Absent treaty or supranational commitments, recognition and enforcement is then solely a matter for national law, as foreign decisions have no independent legal effect without being deferred to or incorporated by some way into the enforcing State. In the extreme, national law can insist that if disputants want to progress amatter, they must retry it within the confines of the enforcing State’s jurisdiction. Such an exercise of sovereignty is not problematic in and of itself. It has value in the overall coherence of a system of entitlements premised upon municipal law, allowing for the preservation of the values and interests of the sovereign (as represented by the devolution of legal power to the enforcing court).3 Exercise of sovereignty in this way at the enforcement stage also provides an ultimate check on what might otherwise be an unbridled or inappropriate forum or dispute resolution mechanism selection on the part of claimants.4

I make two related claims: (1) assessments of stability made by political actors and analysts are largely hit or miss; and (2) that leader responses to fear of fragility or confidence in robustness are unpredictable in their consequences. Leader assessments are often made with respect to historical lessons derived from dramatic past events that appear relevant to the present. These lessons may or may not be based on good history and may or may not be relevant to the case at hand. Leaders and elites who believe their orders to be robust can help make their beliefs self-fulfilling. However, overconfidence can help make these orders fragile. I argue that leader and elite assessments of robustness and fragility are influenced by cognitive biases and also often highly motivated. Leaders and their advisors use information selectively and can confirm tautologically the lessons they apply.

This chapter focuses on the origins of the institutions that would evolve into the European Union. Norman argues that a focus on perceptions of fragility provides a fruitful but underexplored perspective on the creation of the early institutions of European postwar political cooperation. The design of these institutions were informed by perceptions of fragility associated with democratic governance. The conventional functionalist story of the EU, where cooperative institutions were set up to prevent new conflicts between the formerly warring countries, while not inaccurate, obscures how the reconstruction of the European political order was also an answer to the breakdown of European democracy before the war. Notions of democracy’s fragility informed the functionalist perspective on politics as well as the perceived for a ‘militant’ protection of democratic institutions. Apart from shaping the origins of the European political order, the chapter argues that perceptions of fragility have continued to inform the institutional development of the EU and even ongoing efforts to strengthen its democratic aspects.