Introduction
A growing literature on diffusion in political science, sociology, economics, and law argues that rules, organisational norms, and models developed in one political setting shape organisational decision-making in other settings. This theoretical perspective underpins an emerging research programme on diffusion across regional international organisations (RIOs). Scholars suggest that RIOs are not atomistic entities whose emergence and evolution can be understood in isolation from other RIOs. Instead, underlying decision-making processes are interdependent because of material, social, and cultural connections between RIOs.Footnote 1 Many of these new studies have shown convincingly that diffusion matters for understanding a wide range of empirical phenomena in RIOs. In so doing, they provide a welcome corrective to the tendency in the existing literature to view RIOs as driven solely by endogenous – functionalist, intergovernmental, cultural, and other – factors.
Nevertheless, this research programme has yet to realise its full potential due to a major conceptual limitation. There is a widespread tendency to think of diffusion as affecting only the final design of policies or institutional arrangements in RIOs. This has resulted in a truncated understanding of the possible impact of diffusion across RIOs, and has promoted an unjustified view of convergence, understood as a tendency towards increasing similarity in final designs, as its primary outcome.Footnote 2 This narrow focus in much of the literature is surprising for at least two reasons. First, it is widely recognised that organisational decision-making processes, which are conceptualised as interdependent in RIO diffusion studies, are not singular events but tend to consist of several phases or stages.Footnote 3 Second, many studies recognise empirically that adaptation of foreign models is a frequent outcome of diffusion; full convergence is actually rather rare.Footnote 4
In this article, we respond to Etel Solingen’s call to develop conceptual tools that ‘enable adequate discrimination among different degrees of diffusion’Footnote 5 by moving the conceptual focus towards the decision-making process in the receiving organisations. We draw on the public policy literature and organisational sociology research to identify three conceptually distinct and sequential decision-making stages and leverage them to understand the creation of RIO policies and institutions: problematisation, that is, the identification of something as a political problem; framing, or the categorisation of the problem and possible solutions; and scripting, that is, the design of final solutions. We contend that diffusion can affect any combination of these stages. It follows that its effects are more varied than currently acknowledged. Convergence in final design is just one possible outcome; diffusion might also matter when we observe persistent variation in final design.
We illustrate the usefulness of our framework in an empirical realm that has received much recent scholarly attention: the creation of dispute settlement institutions – that is, institutions endowed with the competence to adjudicate disputes and ensure the enforcement of legal commitments. We turn to three RIOs: the European Economic Community (EEC), North American Free Trade Agreement (NAFTA), and the Southern African Development Community (SADC). Our analysis suggests that diffusion influenced the framing stage in the European Court of Justice, and both the problematisation and framing stages in NAFTA. In the case of SADC, diffusion affected all three stages – with the EU providing the scripts for the final stage, as already argued by Karen Alter, Tobias Lenz (co-author of this article), and Onsando Osiemo.Footnote 6 Convergence in outcome thus can only be seen in the SADC case (with its adoption of the EU model), but this does not mean that diffusion did not matter in the other cases. On the contrary, in those cases diffusion affected earlier stages of decision-making and helped set the context for persistent variation in design later on.
Our conceptual approach has three important broader theoretical implications. First, it suggests that diffusion, beyond being a force for convergence in final designs, is also a force for institutional or policy change more broadly. Especially if diffusion triggers the recognition of a situation as a problem that requires political action (problematisation) and the way in which the problem is understood (framing), it provides a strong impetus for departing from the status quo. Diffusion accounts, then, challenge not only functional theories of institutional design and public policymaking, but also variants of neo-institutionalist theories that predict organisational stability. Second, our framework lends support to the view, rejected by most mainstream diffusion theorists, that diffusion can matter even in situations in which final designs (models) are considered for adoption but ultimately rejected. Third, our approach offers a new way of conceptualising the relationship between diffusion and domestic politics in generating outcomes – two factors that are often seen as theoretical anti-theses, not least in the prominent localisation debate. By replacing a narrow focus on ultimate outcomes with a disaggregated view of the decision-making process in the receiving organisation, we come to appreciate that diffusion and domestic politics can interact in sequential fashion and, together, affect final outcomes in RIOs.
The article proceeds in four parts. We begin with a brief overview of existing research on diffusion among RIOs and outline its limitations. In Part II we propose our conceptual framework. In Part III we illustrate it empirically through a structured comparison of the initial creation of dispute settlement institutions of the EEC, NAFTA, and SADC. Finally, we discuss the theoretical implications of our framework, and propose two general conditions that seem to promote diffusion in the three stages of decision-making.
I. Diffusion studies of regional international organisations: Research programme and limitations
Diffusion denotes the process by which ideas, policies, institutions, and organisational activities developed in one context affect political choices in another context in the absence of centralised coordination or coercion. From this perspective, decision-making is interdependent, not independent, across political settings; actors factor in choices made elsewhere as they weigh their options.Footnote 7 In general, diffusion scholars take issue with the widespread if often implicit assumption that decisions in one political setting can be adequately understood in atomistic terms as unfolding in isolation from developments in other settings.Footnote 8
This theoretical perspective underpins an emerging research programme on diffusion among RIOs. Until recently, scholars offered accounts of RIOs that focused almost exclusively on conditions and processes internal to the relevant region. Those accounts are now being challenged. International political economists argue, for example, that governments in one RIO craft trade agreements conditional upon the existence of similar agreements elsewhere.Footnote 9 Recent research examining the language of regional trade agreements even shows that ‘most PTAs [preferential trade agreements] take the overwhelming majority of their content verbatim from existing agreements’.Footnote 10 There is a rapidly growing literature on the diffusion to other regions of models inspired by the EU for international courts, parliaments, and market integration agreements.Footnote 11 Constructivists suggest that security and democracy norms developed in Europe have travelled to regions across the global South.Footnote 12 Policy analysts furthermore show that specific policies in some RIOs, such as those concerning the regulation of trade or labour rights, have served as templates for the creation of policies in other RIOs.Footnote 13 Overall, these studies have accumulated wide-ranging evidence that the impact of diffusion is ‘certainly not spurious’,Footnote 14 and they suggest, more broadly, that our understanding of RIOs is incomplete unless we take processes of diffusion into account.
Yet this emerging research programme still has to realise its full potential due to a major conceptual weakness. It focuses almost exclusively on how final designs of policies or institutional arrangements travel between RIOs. This has led not only to a truncated understanding of the potential influence of diffusion, but also to an unjustified view of convergence in final designs as the primary outcome of diffusion processes. Many diffusion studies take the adoption of a particular institutional form, such as a regional trade agreement or a regional parliamentary body, as their dependent variable.Footnote 15 When adoption occurs, convergence in basic institutional features is the result. Yet even studies that move beyond a binary conceptualisation of adoption display a similar tendency. Consider the following illustration.
In a recent study, Karen Alter demonstrated that the European Court of Justice (ECJ) has shaped the creation of dispute settlement institutions in other RIOs across the world.Footnote 16 She documents the existence of 11 ECJ copies, indicating ‘a revealed preference to emulate the ECJ’.Footnote 17 Like their European model, these courts distinguish themselves from conventional international courts through their use of a supranational commission that monitors state compliance, a preliminary rulings mechanism, and a system of administrative and constitutional review that provides for private access.Footnote 18 This is a striking finding given that the ECJ is ‘known for being activist and sovereignty compromising’Footnote 19 – a result that governments in most other countries would presumably prefer to avoid. It is also theoretically important because it challenges established functional theories of delegation to international dispute settlement institutions that depict them solely as rational responses to structural conditions internal to the respective organisations.Footnote 20
While Alter convincingly shows that diffusion matters for understanding the final design of dispute settlement institutions in many RIOs, two crucial questions about diffusion’s precise theoretical significance are difficult to answer on the basis of her analysis. First, does her account suggest that, in RIOs without a court modelled on the ECJ, diffusion from Europe did not matter at all? By focusing strictly on final design, Alter may have missed other types of diffusion effects. Second, is it justified to assume that convergence can be the only result of – and evidence for – diffusion? Should we not look for diffusion even when we observe continued variation in final designs? Put differently, did Alter miss other potentially relevant cases? Taken together, these questions suggest that the existing scholarship on RIOs at once may be underestimating the role of diffusion (to the extent that it operates at stages other than final design) and, when evidence in its favour is found when it comes to final designs, may be attributing to it too much importance (given that it is then generally seen as one, if not the major, explanatory variable) – as, indeed, a number of scholars have started to suspect.Footnote 21
An important next step, then, is to expand the research focus so as to include but go beyond final design. This requires, we believe, a more nuanced view of the decision-making process underlying the adoption of final designs. Below, we turn to the literature on public policy and organisational sociology to elaborate a coherent conceptual framework around this idea.
II. Diffusion and stages of decision-making: a conceptual framework
Our framework starts from a conceptualisation of diffusion that has become widely accepted in contemporary research: it is best seen as a process, not an outcome, characterised by interdependent and decentralised decision-making across units of analysis, be they states or international organisations.Footnote 22 Whereas recent work on diffusion has focused on dissecting the transfer process from one political setting to another with a focus on final designs,Footnote 23 we propose to disaggregate the decision-making process in the receiving organisation. We thus view the potential impact of diffusion as more extensive than is depicted in current research. Our specific focus is on diffusion across legally distinct RIOs, be they in different geographical areas or overlapping ones, and in place at the same point or different points in time.
We propose that organisational decision-making encompasses three analytically distinct and sequential stages. First, actors identify a problem as requiring political action – what we term problematisation. Second, actors categorise this problem and the types of possible solutions – what we call framing. Third, actors generate specific policy and institutional solutions within the articulated frame – we refer to this as scripting (this is the step of typical interest in the existing scholarship with its focus on final design).Footnote 24 Each of these stages follows distinct dynamics and is potentially influenced by different causal factors, providing the rationale for treating them as conceptually distinct.Footnote 25 To be sure, as the case studies below also indicate, the boundaries between these stages are not always easy to draw in empirical analysis. Problematisation and framing or framing and scripting sometimes go hand in hand, indicating that choices across the three stages may feed into one another. Problematising an issue in a certain way tends to open up a certain universe of frames. Similarly, selecting certain frames over others renders the choice for certain scripts more likely. In short, decisions at an earlier stage may affect decisions at later ones – in line with the expectations of path dependence theorists.Footnote 26 Our point, however, is precisely to propose, and then to show empirically, that actors can in fact make de novo choices across these stages – and that diffusion can be a powerful force at each of them. Thus, whereas one model might serve as the basis for framing a decision, a different model might inspire scripting. Decisions at one stage do not fully determine decisions at later ones. At each stage, actors have considerable freedom over how, exactly, they respond to decisions taken at earlier stages.
Diffusion across RIOs, therefore, can affect any one of these decision-making stages independently and in any combination, including the possibility that it does not affect any of them at all (for example when policymakers in one RIO are unaware of, or simply ignore or reject, the problems, frames, and scripts adopted in other RIOs). Diffusion can thus not only affect scripting, as much recent diffusion research suggests, but also problematisation and framing. We depict our conceptual framework in Figure 1. Below, we explicate each of the three decision-making stages and how diffusion can operate in each. Empirical illustrations are drawn from work on RIOs and dispute settlement.
Figure 1 Diffusion and stages of decision-making.
Problematisation
Sociologists and other scholars of organisations have recognised for some time that ‘problems’ do not simply exist in the world but are in fact crafted through cognitive and societal processes.Footnote 27 Departing from functionalist understandings of organisational structures and practices as reflecting ‘objective’ problems, they suggest that actors in organisations construct problems. As John Kingdon notes, problems are ‘not entirely self-evident. How people define something as a problem is worth some consideration.’Footnote 28 Many ‘objective’ problems do not trigger political action because they are not perceived as problems, or because no solution is readily available. Indeed, the poor functioning of many regional economic organisations is a ‘real’ problem with surprisingly little political consequence.Footnote 29 Many of these organisations persist as ill-functioning for years and even decades without attempts to change the situation. From this perspective, problematisation is the ‘process by which given social conditions or arrangements come to be recognized as social problems’,Footnote 30 that is, problems that require political action. It is the first step toward the creation of new policies and institutional arrangements.
How does something become a problem? Scholars of organisations at times point to causal variables that are internal to an organisation. Social constructivists posit that actors subscribe to particular normative viewpoints about the world that they use to problematise challenges, dysfunctions, strains, or suboptimal outcomes that may emerge from within the organisation.Footnote 31 Moreover, the resources, expertise, and ‘institutional logics’ an organisation is endowed with bias what types of occurrences are characterised as problems.Footnote 32 Regarding dispute settlement, problematisation might result from an endogenous learning process whereby actors become dissatisfied with current arrangements. For example, in Mercosur the ‘reform of the DSS [dispute settlement system] was placed on the agenda as a result of perceived problems with the institutional status quo’ due to defeats of the two larger member states Argentina and Brazil in dispute settlement.Footnote 33
The sources of problematisation, however, can also be external to the organisation. A crisis in a specific cultural and social context might spark problematisation and thus organisational change. Policymakers in Europe, for instance, ‘viewed Hitler’s extermination policy as exposing a limitation of international law’ that required determined political action in a context in which a ‘strong … norm supporting international and global judicial bodies’ already existed.Footnote 34 The absence of a robust European human rights system thus became problematised, and ultimately led to the creation of the European Court of Human Rights in 1953. But, more pertinently for our purposes, scholars of policy learning and policy transfer have long recognised that ‘problems’ can travel between organisations.Footnote 35 Similarly, students of organisations contend that organisations are embedded in organisational fields, and that interaction density, structure, and degree of consolidation generate pressures for institutional isomorphism.Footnote 36
In this vein, we suggest that the recognition in one RIO of a problem as politically relevant can be the result of its construction in another RIO. Regional dispute settlement serves as a pertinent example. During the 1960s and 1970s, few regional integration projects entailed strong dispute settlement mechanisms because no link had been established between dispute settlement and the success of regional integration. As this changed due to the EU experience in the 1970s, the absence of supranational dispute settlement systems in other RIOs began to be seen as a problem.Footnote 37 When policymakers in the Association of Southeast Asian Nations, for example, started discussion of the removal of tariff and non-tariff barriers to trade in the early 1990s, experts quickly pointed to the EU and other RIO’s experience in arguing that this undertaking is likely to fail in the absence of more solid institutions to ensure implementationFootnote 38 – an argument that eventually convinced policymakers. The problem of dispute settlement had diffused to ASEAN from the outside.
Framing
Once actors come to agree that a problem requires political action, they start thinking about ways of tackling it. As they do, they operate with certain ‘frames’ in mind.Footnote 39 According to research on organisational action, social movements, and policy learning,Footnote 40 frames can be defined as ‘collectively shared and accepted ways of interpreting situations and problems’.Footnote 41 Frames include basic schemas, categories, causal pathways, and other cognitive tools. As such, frames are not the answers to the problem but, rather, the basic cognitive tools with which actors first categorise problems and then consider certain tools to solve them – what Michael Barnett and Martha Finnemore term ‘classification’.Footnote 42 By allowing actors to understand problems and to conceive of certain solutions, frames logically exclude alternative interpretations and solutions. We may say that they channel actors’ cognitive abilities and efforts.
Categorisation involves the assignment of labels to a perceived problem. A perceived violation of a supranational legal commitment, for instance, may be described as a ‘failure of implementation’ that has the potential to seriously undermine the credibility of regional integration more broadly. Such categorisation allows actors to make sense of a problem – to give it essential traits and characteristics – and thus to render it amenable to certain kinds of solutions and not others. The identification of possible types of interventions therefore follows categorisation. Certain problems, in other words, call for certain kinds of solutions and not others.Footnote 43 To return to our example, by classifying a legal violation as an instance of implementation failure, policymakers interpret it as part of a general and therefore potentially much larger problem that requires a solution appropriate to the problem at hand: an ad hoc remedial measure might not suffice, a systematic institutional solution is called for.
Where do frames come from? Social movement scholars note that frames are often available in society, as part of the proximate cultural environment in which actors operate.Footnote 44 Actors appropriate frames from their environment and use them to look at the problem at hand. The proposed solutions resonate with those actors and those around them. It would make little sense if matters were otherwise: frames that do not fit a particular cultural context have little chance of guiding actors towards solutions that will be appreciated and understood because they contain ‘cultural repertoires’ that make action intelligible.Footnote 45 These insights are relevant for RIOs. Actors in those organisations operate in national or international cultural contexts rich with frames. For example, domestic legal systems contain manifold taken-for-granted assumptions about the nature of legal problems and adequate solutions that are likely to shape international negotiators’ preferences. In this vein, Francesco Duina (co-author of this article) demonstrates a striking correspondence between the legal traditions of member states – common law vs civil law – and the nature of dispute settlement mechanisms in regional trade agreements.Footnote 46
However, we propose that frames can also come from other RIOs; frames diffuse between organisations. This can happen in multiple ways. For one, actors in one setting are inevitably bound to search for proven and appropriate frames by looking at what other RIOs are doing. They actively consult and examine those organisations. A second way is through more passive exposure: some frame used by one or more RIO may have acquired broad recognition already. A third path of diffusion is the active promotion (through training programmes, published materials, conferences, etc.) on the part of one RIO of its frames for adoption by others. Such promotion can be further supported by backing from external actors such as politicians and experts in epistemic communities.
It follows that the RIO that serves as the ‘provider’ of frames need not have been involved in problematisation; the two decision-making stages can be treated as independent. For instance, internal dynamics or exogenous crises may be responsible for problematisation; once in place, the problem requires attention and organisational actors may then start looking beyond their confines for inspiration or, in a more passive fashion, may have already internalised dominant frames in their organisational fields. According to Alter et al., the idea of separate decision-making stages captures the process of the creation of the Andean Tribunal of Justice. Problematisation had internal roots, with the practice of enacting secondary legislation by presidential decree without parliamentary approval leading policymakers to view the Andean legal system as requiring political reform. Yet, framing was significantly affected by diffusion. Once policymakers began to search for potential solutions, the problem was framed in terms of a lack of a supranational judicial review mechanism that could ‘[provide] a designated judicial body for challenging Andean law’, a categorizstion that, in turn, inadvertently led policymakers to view the ‘the necessity to create a court’ for the region.Footnote 47 This frame had diffused from Europe to legal experts in the region via socialisation and emulation processes. While the ‘question of what type of court [to establish] remained open’,Footnote 48 that is, scripting had yet to be decided, the specific framing of the problem as requiring further supranational legal integration excluded alternative interpretations and other potential solutions, such as changing domestic constitutional provisions or involving national parliaments in the adoption of Andean secondary legislation.
Scripting
Once actors have categorised the problem and thereby prefigured potential solutions, they set out to devise new policies and institutional arrangements. This final stage requires detailing the specific features that create an institution or policy. For example, how should a dispute settlement institution be composed? What specific competences should it have? And should its decisions be binding on member states? Following the terminology of world polity theory, we refer to this stage as the production of scripts, or scripting.Footnote 49 RIO actors utilise scripts, or existing models, as building blocks for the final design of a new policy or institution. Sometimes, single scripts serve as ready-made templates for the design of policies and institutions; at other times, policies and institutions are patched together from different scripts.Footnote 50 For example, the Mercosur dispute settlement mechanism combines elements from the World Trade Organization as well as from the European Court of Justice.Footnote 51 And as we elaborate further below, even when specific templates are adopted, they are usually adapted to local conditions. As already noted, this is the stage of the decision-making process upon which scholars of diffusion across RIOs have thus far focused almost exclusively.
The key question for us concerns the origins of those scripts. How do RIO actors produce them? Research suggests that RIO actors refer to the broader environment for inspiration. National governments, with their legal systems and extensive administrative structures, are significant producers and depositories of scripts on a large variety of topics.Footnote 52 These are accessible and, depending on the issues on hand, RIO policymakers certainly consult them for insights. Much of the same can be said of the policy platforms on national political parties. Some domestic pressure groups make it their mission to provide ready-made policies for international organisations to adopt. They promote their work by publishing them on their websites or other media venues. As we demonstrate in the European case below, many of the design features of the European Court of Justice had their origin in German and Italian models.
At the same time, according to sociologists, international organisations themselves are also very important sources of scripts.Footnote 53 These include transnational corporations, international industry-oriented bodies (such as the International Standards Organization, International Accounting Standards Committee, and World Health Organization), international development-oriented organisations (the OECD or World Bank, for example), and international lobbying and interest groups.Footnote 54 The scripts originating from one international organisation are easily accessible by actors in other international organisations. In many cases, they are actively promoted to those actors.Footnote 55 Consider, as an example, the IMF’s recommended minimum deposit rules for personal accounts with international banks.
Along with existing scholarship on final design in RIOs, we posit that RIOs are important sources of scripts. Scripts diffuse, in other words, across legally distinct RIOs. The mechanisms of diffusion are once again varied. Officials in one RIO can turn to another RIO for inspiration. They may as well come under pressure (internally and externally) to adopt scripts that have proven successful in another RIO. The originating RIO may, for instance, offer financial compensation for adoption, or require it as a condition for something else to happen (a trade agreement between the two blocs, for instance). Powerful groups (consumer organisations, special interest associations, etc.) may also pressure officials in one RIO to follow the examples set by an official in another RIO. Expediency may of course also play a role: ready-made solutions are attractive in their own right. Karen Alter, in the piece discussed above, demonstrates that the European Court of Justice script has been widely adopted, sometimes with modifications, across RIOs in the global South.
Importantly, we should note that such diffusion of scripts can happen independently from that of frames or problems. As with frames, scripts may or may not come from the same sources that provided the problematisation of something. They may also not come from the source of the relevant frames being utilised. Indeed, because they are rather concrete and explicitly articulated, scripts can be easily ‘found’ anywhere in world society and borrowed, irrespective of the prior work that has been done on a problem. Thus it is important to keep in mind that RIOs are only one of the many types of sources for scripts. The World Trade Organization and its predecessor, the General Agreement on Tariffs and Trade, have for instance served as influential sources of scripts for dispute settlement design in RIOs.
Diffusion and persistent variation
As already noted, much of the existing literature shares an implicit understanding of diffusion as the transfer of models across RIOs, even if they are synthesised in creative ways. As a result, scholarship to date has inextricably linked diffusion with convergence, or even homogenisation, understood as a tendency of ‘receiving’ RIOs to become more similar to, or even alike, ‘sending’ RIOs in final designs.Footnote 56 Yet, if diffusion affects only problematisation and/or framing while innovation occurs in scripting, scriptural convergence does not take place; sending and receiving RIOs continue to display variation in this respect. Given the existing literature’s focus on final designs, we refer to convergence only if diffusion affects the scripting stage, whereas we speak of persistent variation between sending and receiving RIO when diffusion effects are confined to problematisation and/or framing. Our main argument is, therefore, that diffusion may be happening even when we observe persistent variation. As mentioned before, while scholars do recognise this empirically, we provide a coherent framework to ground these observations conceptually. We now have a more nuanced conceptual perspective on how diffusion can operate across RIOs, which allows us to improve upon the tendency to equate diffusion with convergence in final designs.
III. Illustrations: Dispute settlement institutions in RIOs
In this section, we illustrate our conceptual framework with a structured comparison of the creation of regional dispute settlement institutions in three RIOs: the EEC, NAFTA, and SADC. Based on existing secondary literature and our own research, we re-examine the decision-making episodes that led to the initial creation of such a body in the respective organisations with a view to discerning the role of diffusion at each stage.Footnote 57 We are interested in diffusion between RIOs, understood as transfers between distinct legal entities established by formal contracts between neighbouring countries.
We selected these case studies for several reasons. First, we wanted to illustrate the two central conceptual points in our argument: diffusion can generate a variety of effects along the decision-making process, operating not only at the final design (scripting) but also at the problematisation and framing stages; and diffusion might play a role in decision-making even if convergence in final designs is not the outcome, which means that persistent variation is another potential outcome of diffusion processes. The three RIOs offer compelling evidence on these points. Second, the three case studies reflect distinct periods in the evolution of the international judiciary – the EEC in the post-Second World War era, NAFTA during the transition period at the end of the Cold War, and SADC in the post-Cold War era. This highlights the broad applicability of our framework.
Third, two of our case studies (the EEC and NAFTA) illustrate especially well how persistent variation can result even in circumstances where there would be strong reasons to expect diffusion in all three stages. As we shall see, there was within each region (Western Europe and North American) a preexisting – though legally distinct – RIO which could have served as a convenient basis for the design of dispute resolution mechanisms. As path dependence and simple logic would lead us to expect, there certainly was some diffusion from those earlier RIOs – a high degree of co-membership, in our view, is certainly a condition conducive to diffusion, an issue we will come back to in the conclusion. But the fact that diffusion did not happen in all stages, and variation in final designs occurred in these two RIOs, is remarkable and instructive.
Our focus is on RIO-to-RIO diffusion. This means we do not examine in detail other sources of diffusion such as global organisations as well as potential second- or third-order diffusion effects that are ‘the product of sedimentation of prior and historically more remote diffusion’.Footnote 58 We of course acknowledge those sources as important. The fact that dispute settlement mechanisms have become very common in international organisationsFootnote 59 has certainly influenced policymakers in many RIOs. We recognise this but then aim to trace, to the best possible extent, diffusion across RIOs.
Our findings, in brief, are these. In all three instances diffusion mattered. Yet, it did so very differently in each case. Existing research argues that the scripts that define SADC’s dispute settlement institutions came from the EU.Footnote 60 We concur with this view: the permanent and centralised dispute adjudication of the EU indeed found its way into SADC. Scholars have instead considered NAFTA (with its non-permanent and decentralised mechanism) and the EU itself as innovators: they built new mechanisms. As such, scholars have shown little interest in diffusion as a possible causal factor. In fact, we suggest that diffusion influenced the framing of potential solutions in the case of the European Court of Justice, and that it affected both the problematisation and framing of dispute settlement in NAFTA. Indeed, in both cases, the ‘originating’ RIOs were in those two very regions respectively – but have been overlooked because of the assumption that lack of convergence means lack of diffusion. When it comes to SADC, moreover, diffusion certainly influenced scripts but also the steps of problematisation and framing – something that has until now been overlooked. We summarise our discussion in Table 1.
Table 1 Diffusion and decision-making stages in three RIOs.
Thus, diffusion mattered in all three cases, even when final institutional design varied. Importantly, diffusion was partial precisely in the two case studies – EEC and NAFTA – where we would have expected it to be wholesale (since these two RIOs were created in areas where earlier, though legally distinct, RIOs were in place).
European Economic Community
The EEC, and later the European Union, is typically considered the source of diffusion for other RIOs and rarely the receiver. This is especially so in the case of its European Court of Justice, which was created in 1958 with the two Treaties of Rome – the EEC and the European Atomic Energy Community. Without question, the European Court of Justice has influenced the creation of courts in numerous RIOs. What is often not considered, however, is whether other RIO courts have shaped the European Court of Justice itself. A close examination of the historical record shows that diffusion happened at one juncture in particular: framing. The source was an RIO in Europe itself: the European Coal and Steel Community and its Court of Justice (the ECSC-CJ). Indeed, the ECSC-CJ, and not the European Court of Justice, should be considered perhaps the first and most original of the modern RIO courts.
A few clarifications about the ECSC-CJ are in order. It was not part of the original plans for the Treaty of Paris of 1951, which established the European Coal and Steel Community.Footnote 61 It emerged as a possibility after the member states became concerned with questions of legal remedies and of the balancing the powers of the supranational European Coal and Steel Community High Authority with the interests of national governments. A committee of jurists was given the mandate to make proposals. France opposed any permanent court, but the Benelux countries and Germany favoured it – albeit for different reasons.Footnote 62 Once the decision was made to have a court, intense negotiations ensued. The evidence points to inspiration coming from ‘traditional-continental European types of administrative courts’,Footnote 63 and, in particular, France’s Conseil d’Etat, though its design ultimately ‘defied easy categorisation’.Footnote 64 The ESCS-CJ was accordingly designed without other RIO courts in mind, though it belonged to a postwar period during which new transnational courts of justices were being created (for instance, the Nuremberg Court and the European Court of Human Rights).
These developments influenced the European Court of Justice. In the early 1950s, the six European Coal and Steel Community members began contemplating integration efforts for their national economies and the production of atomic energy. While negotiating the treaties for the EEC and the European Atomic Energy Community (two new and legally distinct RIOs), ‘it was by no means clear how the institutional structure of the two communities would look and whether it would include a Court’.Footnote 65 Indeed, uncertainties about the need for a court featured in parallel discussions by federalists, such as the European Movement led by Paul Henri Spaak and other Europeans exploring a variety of futures for a united Europe (including a European Political Community, which could have had a need for a court).Footnote 66
A new problem thus presented itself: did the process of adding two new RIOs in Europe necessitate the creation of new and shared supranational institutions? A fundamental disagreement was at the root of the question. In a sort of turnaround from its position during the European Coal and Steel Community creation, the French delegation to the Venice negotiations in May of 1956 made it clear that it ‘could not support a connection between the ECSC court and the two projected Communities’.Footnote 67 France was opposed to a strong supranational judiciary capable of acting independently of national interests. But the other member states thought that the creation of the European Economic Community and the European Atomic Energy Community called for an integrated legal system (inclusive of the European Coal and Steel Community) and shared institutions, including a court. The challenge of building three parallel RIOs thus served as grounds for the problematisation of the need for a possible court. In the language of this article, the first step of the process was therefore an internal matter: it had to do with the institutional logic of creating three RIOs.
There followed considerable debate over how best to proceed. Negotiators began categorising the problem they faced and identifying a set of possible solutions – they began framing the issues on hand. The available evidence suggests that at this moment the ECSC-CJ became an important reference point (much as it had in the earlier discussions surrounding the European Political Community).Footnote 68 Officials from all the member states but France reasoned that the EEC by virtue of its extensive legal framework would inevitably face a judicial problem similar to the one experienced by the European Coal and Steel Community, and that accordingly an independent permanent court analogous in general terms to the ECSC-CJ would be the appropriate type of solution.Footnote 69 Equally important, given that the European Coal and Steel Community would constitute one of the three RIOs in question, the judicial question would also involve the ECSC and, for the sake of institutional unity and coherence, should be dealt with by a single judicial body. The problem was therefore deemed to be judicial in nature, and the solution would also be the same. Thus, a network of pro-European jurists, including ESCS-ECJ General Advocate Maurice Lagrange, argued that ‘[ESCS-] ECJ jurisprudence laid the foundations for a genuinely European legal order on which a future Federal Court could base itself.’Footnote 70 But the French government (along with some prominent politicians from other countries, such as the German Ministry of Economics) disagreed, and proposed that the solution be more ‘technical’ in nature: a Court of Arbitrage made up of a secretariat and ad hoc technical experts could suffice, given that only a few disputes would arise.Footnote 71 The ECSC-CJ, for the French, was not an appropriate reference. The lack of consensus around solutions meant that the court was eventually removed from the agenda in late 1956, only to reappear at later rounds in the negotiations.Footnote 72
After securing important economic concessions, the French relented and the idea of a permanent court of justice was accepted.Footnote 73 The time had thus come to define its design – the scripting phase began. Here, if the ECSC-CJ was inspirational in the framing phase, it played a significantly lesser role in this third step. Now officials had to deal with three RIOs and the objectives and aspirations in question had considerably expanded.Footnote 74 A more powerful court, effectively dealing with constitutional tasks – that is, with the ability ‘to invalidate statutes and other acts of public authority found to be in conflict with a constitution’Footnote 75 – was envisioned, and officials had to reach for new ideas and tools. As a group, key historical accounts, such as Anne Boerger-De Smet’s,Footnote 76 depict the jurists charged with defining the court as operating with considerable freedom and independence and turned, at least for some inspiration, to the national models (the Italian and German especially).Footnote 77 The most important innovation was endowing the new European Court of Justice with the power to hear preliminary references from national courts concerning the validity of domestic law and, with that, the unprecedented ability to interpret European law and issue preliminary rulings.Footnote 78 This could in principle ensure uniform understanding throughout the CommunityFootnote 79 and would eventually have major implications for the activities of the court. The European Court of Justice was also given powers to review the legality of acts by the Council and the Commission. Article 4, in turn, strengthened the standing of the court by stating that it should be considered equal to the other major institutions of the Community.Footnote 80
All this set the new European Court of Justice quite apart from the ECSC-CJ. A new sort of Community court had been created – one that would influence dispute settlement institutions in many other RIOs in the coming decades.
North American Free Trade Agreement
We consider here the highly used dispute settlement mechanismFootnote 81 for foreign investments laid out in Chapter 11 of NAFTA. Rather than a permanent court or other institutionalised body, Chapter 11 specifies guidelines for hoc tribunals capable of issuing binding decisions related to discrimination, uncompensated expropriation, and treatment inconsistent with international law by member states vis-à-vis foreign investors. In terms of scripts, Chapter 11 owed little to any other RIO and was ‘revolutionary’ or at the very least quite innovative in several respects.Footnote 82 Yet, other RIOs certainly influenced the earlier stages of the process. As with the European Court of Justice, then, this case highlights how diffusion across RIOs can happen in the earlier phases of institutional design but be far less relevant in the final step, even in cases where the new RIOs supersede preexisting ones in the same spaces (and with the same membership).
What, then, prompted the problematisation of investor rights among the NAFTA negotiators? Several factors played a role. Some were certainly endogenous to the region. North America as a whole during the 1980s had become a major destination of foreign direct investment, with flows among the three member states increasing in every direction (except for Canadian investments into Mexico).Footnote 83 The United States was accordingly interested in more secure access to Mexico.
But exogenous factors also played a role. Some of these were not RIOs. The United States was already a participant in numerous bilateral investment treaties,Footnote 84 and these as a rule had for a long time guaranteed various sorts of investor protections.Footnote 85 During the GATT Uruguay Round of 1986, in turn, the regulation of foreign investment disputes was entertained for the first time.Footnote 86 Relevant were also frameworks from the International Centre for the Settlement of Investment Disputes Convention and the United Nations Commission on International Trade Law Arbitration Rules from the 1960s and 1970s, which appear in Chapter 11 as options for settlement procedures. All these informed American interest in particular in this topic.
But RIOs also influenced the problematisation of investor rights in NAFTA. In general terms, NAFTA was the North American response to regional integration in Europe and elsewhere, and the corresponding perceived need for a far-reaching trade agreement supported by an enforceable regulatory framework. This applied to the movement of capital as well, especially for the United States and Mexico. Maxwell A. Cameron and Brian W. Tomlin describe for instance how Mexican President Carlos Salinas, upon returning from a trip to Europe in 1990, realised that ‘Mexico could not count on its creditors for economic aid [and that] it would have to seek capital from foreign investors’.Footnote 87 Indeed, ‘the shift in the global economy toward gigantic regional economic blocks, such as the creation of a common market in Europe, left Mexico with few choices. … Remaining closed was not an option, and unilateral liberalization seemed to have few benefits.’Footnote 88 The choice was therefore ‘negotiated liberalisation’ in North America. Broadly speaking, then, the European experience mattered. In more specific terms, the presence of two RIOs with dispute settlement institutions – more importantly the Canada-United States Free Trade Agreement (CUSFTA) with its investor protection clausesFootnote 89 and, probably to some extent, the 1987 ASEAN Agreement for the Promotion and Protection of Investments, with its binding arbitration tribunal – virtually ensured that the topic would be an issue at least for debate in the NAFTA context.Footnote 90
CUSFTA in particular influenced the framing phase. It offered one way of categorising the problem (the liberalisation of capital movement cannot occur if investors worry about the safety of their international investments) and offered a possible solution (investor rights should therefore be protected thought not if it means loss of national sovereignty). Hence ‘Canada wanted to keep Chapter 11 as close to CUSFTA provisions as possible. Early bracketed texts were dominated by Canadian exceptions and limiting clarifications’.Footnote 91 CUFSTA had also granted governments the right to review certain types of foreign investments – something also of importance to Canada.Footnote 92 With CUFSTA’s basic approach already shaping NAFTA’s dispute settlement mechanism for anti-dumping and countervailing duty cases,Footnote 93 its potential applicability to investments was clear.
At the same time, the US was ‘interested in expanding even beyond the measures included in its maximalist bilateral agreements, and insisted from the beginning on starting from scratch, rather than building on CUSFTA. The United States was hoping to avoid such a provision in NAFTA’.Footnote 94 Hence, if only in a negative sense, CUFSTA helped define the American position as well. The United States’ stance, we should note, was in a positive sense more in line with the principles found in a number of recent bilateral investment treaties, which themselves followed the principles of the International Centre for Settlement of Investment Disputes Convention, the Additional Facility Rules of the International Centre for Settlement of Investment Disputes Convention, and the United Nations Commission on International Trade Law Arbitration Rules. In the case of the United States and Canada, then, CUFSTA very much helped frame the issues and solutions on hand.
When it came to scripting, however, NAFTA planners departed significantly from the existing design of any RIO. As Kristin L. Oelstrom put it, ‘the dispute settlement provisions for investors form one section of the NAFTA that is not modelled on previous trade agreements’.Footnote 95 The key characteristic of the dispute settlement mechanism on investments was something unprecedented for an RIO: it allowed investors to sue directly a country or subnational jurisdiction. All past multinational trade agreements required investors to ask their states to sue on their behalf.Footnote 96 This was the outcome the United States wanted given its fear of autocratic Mexican governmental actions over foreign investments – one that predictably caused considerable uproar over time among legal scholars and the public alike. In this regard, if there was diffusion, it was from bilateral investment treaties, which typically allowed for investor-state disputes.Footnote 97 A second novel feature of NAFTA was the adoption of a ‘negative list’ of industries that would be exempt from the stated protection obligations (whereas past practice in CUSFTA and other RIOs required the listing of industries that were covered by those obligations).Footnote 98 A third and major innovation was the wide interpretation of investments as including ‘minority interests, portfolio investment, and real estate property’.Footnote 99
The final design of NAFTA’s dispute settlement mechanism in the investment area was thus remarkably innovative and standard-setting (Mercosur’s 1994 Protocol of Colonia, for instance, would subscribe to the investor-state dispute concept). But these novelties do not mean that diffusion from other RIOs did not happen in the problematisation and framing phases. There, the experiences of the EU and CUSFTA especially proved important.
Southern African Development Community
The Treaty of Windhoek transformed the Southern African Development Cooperation Conference into today’s SADC with the goal of integrating the members’ economies into an EU-type common market. Previously, it was a loosely structured organisation built upon financial and technical support by international donors aimed at withstanding South Africa’s apartheid destabilisation policies vis-à-vis its neighbours through functional cooperation in selected policy areas. There was nothing ‘natural’ about the creation of a dispute settlement mechanism in the transformed SADC.
How did dispute settlement become problematised? Discussions of transforming the organisation started in the region in the late 1980s. At this time, political debates initially problematised a variety of issues associated with the functioning of sectoral cooperation, and less so the institutional framework of the organisation per se. For example, a virulent issue in the late 1980s was the selection criteria and approval procedure of projects that underwent changes due to the lack of coordination between regional and national political priorities.Footnote 100 In none of these debates was dispute settlement ever an issue, suggesting that there were no direct internal reasons for problematisation. In fact, an expert team that had been tasked to make recommendations on a revised institutional structure for the organisation in light of the envisaged transformation in its mandate noted that SADC’s institutions ‘are adequate and effective generally’. It presented a list of institutions to be officially included in a new Treaty, which did not contain a dispute settlement mechanism.Footnote 101
Instead, problematisation diffused from the outside. Even though the aforementioned expert group did mention that ‘settlement of disputes shall be by arbitration’,Footnote 102 dispute settlement only rose to the agenda as a problem that required political action with the 1992 Consultative Conference, an annual meeting of SADC officials and representatives from external donors, which is widely seen as ‘the most important event in the SADC’s calendar of activities’.Footnote 103 The theme document, which is used by donors to make financial pledges for the following period, engaged, for the first time, justifications for different approaches to economic integration in the region. Elaborated in cooperation with the most important donor agencies, including representatives from the EU, it clearly stated that a regional development community ‘requires mechanisms of mediation and arbitration’.Footnote 104 The next Council of Ministers meeting then set the issue onto the political agenda.Footnote 105 Nothing in the SADC context per se can explain this problematisation. Instead, the documents for the 1992 conference suggest that problematisation diffused from another RIO: the idea that economic integration requires mechanisms for dispute settlement came from the European experience, and was transferred by European experts who participated in the formulation of the theme document.
In this case, problematisation was closely linked to framing. The first expert group initially framed the choice as one between an arbitration tribunal, which was a reform proposal being discussed in the General Agreement on Tariffs and Trade (GATT) at the time,Footnote 106 and a committee, which was the existing GATT mechanism.Footnote 107 Yet after the Secretariat had depicted the move towards economic integration as involving a choice between ‘the proposed North American free trade zone or the European Economic Community’,Footnote 108 policymakers started considering a wider range of frames for dispute settlement that also involved the more centralised form of arbitration of a standing court. All of these frames shared two key characteristics. They diffused from other international and regional organisations rather than constituting endogenous creations, and they categorised the problem of arbitration as one of choosing the right institutions with possible solutions requiring delegating competences to an independent body instead of a politically dominated process. At their first meeting after the consultative conference, the organisation’s Council of Ministers adopted this frame when noting that a regional Tribunal was to be among ‘the central intergovernmental organs of the community’.Footnote 109 It was eventually codified in the Windhoek Treaty (Art. 16), which provided for the establishment of a permanent Tribunal with compulsory jurisdiction and the power to ‘give advisory opinions’ over all matters of the treaty and subsidiary instruments. In accounting for the fact that policymakers eventually chose a more institutionalised solution to the problem of arbitration, Lenz plausibly suggests that this was due to the fact that political leaders were eager to retain credibility with important international cooperation partners amidst rumours to withdraw funding from the organisation after the end of the Cold War, among which the EU was the most important.Footnote 110
The Tribunal’s specific institutional features – its scripts – were to be laid down in a separate protocol, work on which started several years later. By that time, designing the Tribunal based on the template of the new dispute settlement system of the World Trade Organization, with which the Windhoek stipulations were fully compatible, appeared like the ‘natural’ choice for a group of countries that were largely unwilling to cede significant amounts of sovereignty. When signing the protocol in 2002, however, policymakers showed ‘a revealed preference to emulate the ECJ’ due to three key institutional features of the Tribunal: a supranational Commission that monitors state compliance, a preliminary rulings mechanism that is a literal copy of Article 177 of the Treaty of Rome, and a system of administrative and constitutional review that provides for private access.Footnote 111 As before, this choice was readily explicable by a mix of EU-oriented epistemic communities that were involved in the Protocol’s drafting, as well as an external context characterised by another legitimacy crisis with external donors, on which the organisation continued to be highly dependent.Footnote 112 In sum, the SADC Tribunal constitutes an instance of extensive diffusion, with all of the three decision-making steps leading to the final outcomes influenced by external models, above all the EU’s.
Conclusion: Theoretical implications and conditions of diffusion
In this article, we have sought to refine our understanding of diffusion’s causal influence on RIOs. Drawing on insights from public policy research and sociological work on organisations, we offered a conceptual framework that allows scholars to extend their focus beyond the final design of policy and institutional outcomes (scripts, in our terminology). We suggested that policies and institutional arrangements in RIOs result from three distinct decision-making stages: problematisation, framing, and scripting. Diffusion across RIOs can affect any combination of these three stages. Convergence thus need not be the only marker of diffusion: diffusion can happen also when we observe persistent variation in final design. We illustrated this conceptual logic with a structured comparison of the establishment of dispute settlement institutions in the EEC, NAFTA, and SADC. In this section, we discuss three theoretical implications of our analysis and propose two general conditions under which diffusion is likely to affect the three stages of decision-making in RIOs.
As to theoretical implications, the findings suggest, first, a reconsideration of the nature of diffusion as a causal force. Much of the literature, not only on RIOs but beyond, depicts diffusion as a force for convergence in final designs.Footnote 113 From this perspective, diffusion accounts are generally seen as posing a theoretical challenge to functional theories of institutional design and public policymaking. Our analysis indicates that this view is overly narrow. Especially if diffusion triggers the recognition of a situation as a problem that requires political action (problematisation) and shapes the way in which the problem is understood (framing), it provides a strong impetus for departing from the status quo, independent of the resulting final outcome – thus, it constitutes a force for change. If this argument is correct, diffusion accounts challenge a potentially much larger class of theoretical approaches including, above all, certain variants of neo-institutionalist theories that predict organisational stability. Historical institutionalism, in particular, has identified powerful forces – sunk costs, adaptive expectations, learning and coordination effects, and resistance by the beneficiaries of the status quo – that reinforce the continuity of institutional arrangements.Footnote 114 Similarly, a large sociological literature contends that institutions rest on shared normative routines and commitments that have a tendency to be chronically reproduced. This has led to a widespread assumption, present also among International Relations scholars, that international organisations ‘are notoriously resistant to reform or redirection’.Footnote 115 Our analysis suggests that diffusion dynamics might undermine the endogenous self-reinforcement dynamics characteristic of path dependent processes. In this sense, diffusion pressures act effectively as an external shock on the receiving organisation – and their role is thus consistent with the thinking of some neo-institutionalists who see external shocks as the primary causes of disruption triggering organisational change. The specific ways in which diffusion does so invites further research.
Second, our framework contributes to the debate among scholars on ‘whether or not diffusion implies the adoption of some variant of the original model’.Footnote 116 There is a growing view, resisted by some, that even non-adoption might indicate diffusion to the extent that a particular model is considered for adoption, even if it is ultimately rejected.Footnote 117 The claim has merit, and the two positions appear contending because they in fact focus on different stages of decision-making: whereas the mainstream view – non-adoption indicates non-diffusion – recognises diffusion only in final designs, the other position essentially acknowledges, as do we, that diffusion might operate at earlier stages of decision-making. When a model is considered for adoption and ultimately rejected as a template for final design, it might nevertheless subtly shape the way an existing arrangement is problematised, or it might frame, in a generic fashion, the problem and potential solutions. In this sense, even non-adoption of the institutional template can indicate a causal role for diffusion. The NAFTA case offers an example.
A third theoretical implication concerns the interaction between diffusion pressures and domestic politics in shaping outcomes. Diffusion studies are often set against explanations emphasising internal factors in general and domestic politics in particular. The common conceptualisation of diffusion as concerning final design is at the root of this disagreement. It has led scholars to treat the two sets of factors as theoretical antitheses: if a decision to adopt a particular policy or institution can be explained as the result of diffusion it cannot be explained by domestic politics and vice versa. Our framework offers an alternative perspective. By distinguishing discrete stages in decision-making processes, we open up analytical space for both diffusion and domestic politics to matter in a sequential fashion. We gave some illustrations of this when introducing our conceptual framework; our three empirical illustrations, more systematically, displayed different sequences of the key ‘dynamics of “imitation and innovation” through which transnational models are instantiated in national settings’.Footnote 118 We hence recognise conceptually, not just empirically, that diffusion and domestic politics do not constitute antitheses, and provide one coherent way for conceptualising their interaction.
This helps to shed new light on the localisation debate. Localisation scholars recognise diffusion as a salient influence on local processes but highlight processes of translation and adaptation of foreign norms, ideas, and models by local actors. Convergence, these scholars contend, is hardly ever an outcome under such circumstances, and local actors should enjoy analytical primacy.Footnote 119 Our framework suggests that these arguments tend to be based on the misguided dichotomy that an outcome is affected primarily either by domestic politics or by diffusion. These scholars actually recognise that, in our terminology, it need not be final designs but can also be problems or frames that diffuse from abroad. While domestic politics might be the major determinant of scripting, as these scholars contend, diffusion can nevertheless shape problematisation or framing – as was the case in the EEC and NAFTA. Thus, this controversy appears overblown if we recognise conceptually that domestic politics and diffusion can affect different stages in decision-making.
We end by reflecting on one final question: Under what conditions is diffusion likely to influence RIO decision-making? The above empirical illustrations, as well as other diffusion research, suggest two general conditions. First, we expect network ties to play an important role. The closer such network ties, the more likely is diffusion going to be. Two types of network ties are relevant here. One is overlap in membership. The higher the membership overlap between two RIOs, the more likely will diffusion affect decision-making because relevant information flows are likely to occur.Footnote 120 This is what we saw in the EEC and NAFTA cases, where shared membership across two legally distinct RIOs was a powerful facilitator of diffusion. These two cases also suggest that such membership overlap is most likely to affect the framing stage, and maybe also problematisation. It appears to leave more room for innovation at the scripting stage. Another relevant network tie, especially visible in the SADC case, is interaction with a powerful organisational pioneer. The EU is generally seen as the most successful example of regional integration, and it actively supports such processes in other organisations.Footnote 121 Close ties with the pioneer appear to increase the likelihood of diffusion across stages of decision-making. Whether this influence lessens as we move from problematisation to scripting remains to be analysed. The absence of such close ties, in turn, might explain why NAFTA appeared less influenced by the EU model of dispute settlement.
While network ties are relational and therefore tend to be actor-oriented, diffusion is also facilitated by broader structural conditions. A second condition, then, is that the total amount of RIOs in which problems, frames, or scripts have diffused affects the likelihood of diffusion to other RIOs. In an analogy to David Strang’s influential definition of diffusion,Footnote 122 we might hypothesise that the prior adoption of a problem, frame, or script in a population alters the probability of adoption of remaining non-adopters. Concerning dispute settlement, we would thus expect that the more RIOs problematise the issue in their organisation, the higher the likelihood that other RIOs will follow suit. The same hypotheses can be rendered for frames and scripts. Once a certain threshold level of adopters is reached at each stage, a specific problem, frame, or script assumes a taken-for-granted character, and is therefore likely to diffuse more rapidly.Footnote 123 Over time, then, variation in problematisation, framing, and scripting within the population is likely to diminish – a hypothesis well known from world polity theory.Footnote 124 What our framework adds to this idea is that this structuration process follows a sequential logic that evolves from problematisation through framing towards scripting. In other words, we are likely to see structuration tendencies first in problematisation, then in framing, and finally in scripting.
This sequential macro-hypothesis appears to be consistent with the general evolution of dispute settlement in RIOs and preferential trade agreements (PTAs) that is the subject of much recent analysis. The relevant literature indicates that some form of institutionalised dispute settlement in RIOs and PTAs is becoming increasingly common, which implies, in turn, that RIOs and PTAs without any such mechanism have become rare.Footnote 125 This suggests that the issue of dispute settlement is problematised almost ‘automatically’ when such agreements are being negotiated. In other words, variation across RIOs and PTAs appears to have decreased enormously in problematisation. Yet increasing similarity goes further. Beyond problematisation, most RIOs and PTAs nowadays feature dispute settlement mechanisms that involve independent third parties as adjudicators, implying that dispute settlement is increasingly framed as a problem that requires independent adjudication. Nevertheless, in terms of scripting much variation appears to remain. It is at this stage of decision-making that diffusion is potentially the least widespread, partly because no single uncontested model of how to address dispute settlement design has emerged. Clearly articulating and rigorously testing such hypotheses across stages of decision-making remains a fruitful area for future research.
Acknowledgments
An earlier version of this article was presented at the International Studies Association Conference in Toronto, March 2014. We thank the participants at the meeting, as well as Julia Gray, Joe Jupille, three anonymous reviewers and the editors for their most useful comments. Tobias Lenz acknowledges support from the European Research Council Advanced Grant #249543 ‘Causes and Consequences of Multilevel Governance’, and a Daimler and Benz Foundation postdoctoral scholarship.
