The Transnationalisation of Commercial Law

Abstract:
Commerce always requires an institutional embedment. Basically, private Institutions as well as state institutions can provide the normative good of legal certainty understood as the enforceability of contractual commitments. While for domestic commerce, the balance between the importance of private and state institutions is almost equal, economic globalization leads to a decrease in the relative weight of public institutions and to a corresponding increase in the overall importance of private institutions for international commerce. This trend of internationalization and privatization of responsibility for the provision of legal certainty combine to what we call the transnationalisation of commercial law.

Drawing on five case studies, in this paper we try to explain why today private institutions are of greater importance for cross-border transactions than state or multinational institutions. One the one hand, the first two studies show that there is no real practical need for multinational institutions for cross-border commerce. First, the modern information and communication technology strengthen the effectiveness of reputation-based mechanisms — relational contracts and reputational networks — for the safeguarding of cross-border transactions. Second, vertical integration in general and intra-firm trade in particular offer effective alternatives to market exchange. One the other hand, some private institutions can offer more than safeguarding commercial transactions as they can guarantee to a certain extent a respect of fairness and public policy issues. In maritime law, the third case study, it can be shown that private actors can achieve a fair arrangement for all stakeholders by allowing them to participate in the process of norm-formation in a transparent process. The fourth study in international commercial arbitration shows that international arbitration courts respect national mandatory rules and produce new transnational mandatory rules. However, the transnationalisation of commercial law leads to the trend of the vanishing trial: National Courts register less commercial disputes which does not come without cost. The fifth case study explains possible reasons for the decreasing number of commercial cases in German courts.

Calliess, Gralf-Peter, Hoffmann, Hermann B. and Mertens, Jens, The Transnationalisation of Commercial Law (2012). ZenTra Working Paper in Transnational Studies No. 4/2012.

Legal Culture and Legal Transplants

Abstract:
This working paper considers the legal system of England and Wales in terms of its impact on other legal systems and its reception of transplants from other legal systems. The paper was written to comply with a template established by the coordinator of a global representation of legal systems for the meeting of the Academy of International and Comparative Law held in Washington in 2010. As such it provides a very broad overview which provides an introduction to some aspects of the Common Law system of England and Wales.

Farran, Susan Elizabeth, Legal Culture and Legal Transplants (December 14, 2009).

Comparative Law as Rhetoric: An Analysis of the Use of Comparative Law in International Arbitration

Abstract:
This article addresses the use of comparative law in arbitral advocacy.

Sourgens, Frederic G., Comparative Law as Rhetoric: An Analysis of the Use of Comparative Law in International Arbitration (2007). Pepperdine Dispute Resolution Law Journal, Vol. 8, No. 1, 2007.

Toward a Mature Doctrine of Informed Consent: Lessons from a Comparative Law Analysis

Abstract:
Under the doctrine of informed consent, physicians owe patients a duty to disclose to them all material risks of a contemplated treatment or procedure. While the doctrine is generally well accepted in the United States and several other common law countries, it has had a rockier reception in other places. This inconsistency is on its face surprising, given that the doctrine stems from the principle of patient autonomy – a principle to which most countries supposedly subscribe. Unless the patient is in possession of sufficient information, that autonomy may be compromised. But the inconsistency is less puzzling when one considers the difficulty of applying the doctrine to the actual physician-patient relationship.

This article examines the doctrine in four countries that have had different responses to informed consent: the United States; Great Britain; Canada; and Taiwan. This comparison highlights the compromises that each of these jurisdictions has made to the foundational principles of informed consent, and then proposes a way forward by borrowing heavily from the Canadian model.

Culhane, John G., Wu, King-Jean, Faparusi, Oluyomi and Juray, Eric J., Toward a Mature Doctrine of Informed Consent: Lessons from a Comparative Law Analysis (November 14, 2012). British Journal of American Legal Studies, Vol. 1, p. 551 (2012); Widener Law School Legal Studies Research Paper No. 12-37.

The Method is Dead, Long Live the Methods - European Polynomia and Pluralist Methodology

Abstract:
Globalization and Europeanization do not only produce coherence and uniformity but are flanked by differentiation and fragmentation, producing diverse and polycentric outcomes. This article puts forth reflections on European legal pluralism and a proposition for pluralist methodology. The author claims that in today’s Europe there is legal pluralism, which means that there are many over-lapping normative orders in Europe. It is claimed that Europe is fundamentally pluralistic. Hence there are overlapping non-coherent hierarchies and competing claims for normative power. This is conceptualized as polynomia. The article seeks to demonstrate that legal pluralism in the strong sense has penetrated into European legal doctrine. This state of affairs is claimed to result in a situation in which pluralism is not something that would concern legal anthropologists, legal historians or sociologist of law only. According to this article, doctrinal methods forged in the molds of legal centralism and monism are outdated and respond poorly to the present day European legal pluralism.

Husa, Jaakko, The Method is Dead, Long Live the Methods - European Polynomia and Pluralist Methodology (December 1, 2011). Legisprudence, Vol. 5, pp. 249-271, 2011 .

The Road from Common Law to East-Central Europe: The Case of the Dissenting Opinion

Abstract:
The paper has the purpose of telling the story of dissenting opinions and discusses the use of this instrument by constitutional courts in a comparative perspective. The gradual spreading of dissenting opinions all over Europe illustrates that the countries of East-Central Europe emerging from Communism, in many aspects, followed the German model of constitutional justice as a full package, without seeing it first in the details, but only enriching it with new competencies. The paper examines the 'migration' of this legal phenomenon that left England for the United States in the baggage of common law, then moved to Germany in order to take part in the reconstruction of a country destroyed by a war and an extremist ideology, that subsequently travelled to Spain, where it served to uphold and renew judicial traditions, and finally arrived in East-Central Europe to help in the building of constitutional democracy.

Kelemen, Katalin, The Road from Common Law to East-Central Europe: The Case of the Dissenting Opinion (October 2010). Paper presented at the Second Central and Eastern European Forum for Young Legal, Social and Political Theorists, organized in Budapest, 21-22 May 2010, published in P. Cserne−M. Könczöl (eds), Legal and Political Theory in the Post-National Age, Frankfurt-[etc.], Peter Lang Publ., 2011, p. 118-134.