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This introductory chapter begins with a description of the July 2009 conference marking the first decade of the German Law Journal (GLJ). The conference was convened under the title, “The Transnationalization of Legal Cultures,” and the resulting discussion underscored two points. First, there was easy consensus that we are living in a transnational era, in that, today, lawyers—including academics, practitioners, judges, and activists—are ever more deeply entangled in the border-defying legal reality that inspired Philip Jessup to coin the phrase “transnational law” a half-century ago. Second, there was little agreement on how to define or, indeed, imagine transnational law and the transnationalization of legal cultures. The chapter then discusses the characteristics that made the GLJ a medium for encounters between legal cultures, and the Journal's contextualism. An overview of the subsequent chapters is also presented.

The chapter considers transnational private law and private ordering as venues for contestation in economic governance. Various factors have reduced the effectiveness and legitimacy of public law venues as the focus for contestation in transnational economic governance. Other venues of contemporary global pluralism offer possibilities but also face problems such as complexity and legitimacy. The chapter considers these possibilities and limits by examining the governance model associated with transnational private law, defined as the combination of private international law and domestic private laws. Drawing from examples of transnational tort litigation and non-state international dispute resolution, the model of transnational economic governance that emerges involves both cooperation and contestation among private actors. Public policies such as regulation and protection are advanced as public authority operates indirectly through facilitating and overseeing processes of private ordering.

This chapter discusses the persistence of institutional cosmopolitanism, as manifested both in relation to religion and with respect to the international, the regional, and the transnational. The most ancient of these forms of institutional cosmopolitanism is collaboration between religious and temporal authority. It is shown that the significance of traditional fields and methods of international law is declining in the face of more appropriate and cosmopolitan solutions. This is confirmed by the rise of both regional law and transnational law.

There are many ways to theorize transnational law. As always, there is a mainstream, and there are side streams. However, it may be more interesting to consider from which direction such theories develop. This chapter considers three directions in transnational legal studies: theorizing from above; theorizing from below; and theorizing from inside. Much of each of these theories can be found in the German Law Journal.

This chapter addresses the relation between the construction of the modern political system and the emergence of public law. It argues that the political system developed through a triadic process of functional differentiation and abstraction, in which European states obtained, first, a judicial order; second, a fiscal apparatus; and third, mechanisms for representation. Each of these stages was made possible by an increasingly ordered system of public law, which underscored the political system's self-organization and autonomy. The dimension of public law relating to rights has particular significance in this process; rights form the underlying code for the differentiated political system. The chapter proceeds to argue that the heterarchical dispersal of the law in contemporary society is not discontinuous with classical public law. The transnational, rights-mediated constitution of global society actually extends classical constitutional law, and it reconfigures the basic functions of public law as a medium for the abstraction of the political system.

This chapter reproduces a keynote debate that took place at one of the conferences in Edinburgh in the context of the PILIM project. Diego Fernandez Arroyo and Giuditta Cordero-Moss discussed the role of private international law in international commercial arbitration. They discuss the usefulness of conflict rules in arbitration proceedings, among other things where the parties have made a choice of law, examining also the limitations of choice of law clauses.

This chapter examines the phenomenon of “disembedded state law”—that is, law that, once freed from its origins and moorings in a system of domestic-national legality, comes to experience an afterlife as foreign law. This phenomenon is perhaps most controversially associated with “comparative constitutionalism,” or,“transjudicialism”—the practice of, say, the U.S. Supreme Court citing the decisions of foreign domestic national courts in matters that do not directly implicate U.S. interests—but the phenomenon is not limited to such practices. Disembedded state law is encountered less visibly but far more frequently in the fields of transnational public law and private international law.

This chapter explores the relationships between the concept of a legal system and non-state law. It considers the question why the former (the concept of a legal system) is useful and even necessary for the second (the definition of non-state law), and addresses one immediate consequence that follows from this. The chapter first discusses the point in the abstract. It then illustrates the point by referring to the lex mercatoria, as the forerunner of the current theories on arbitration as transnational law.

This essay argues that the numerous competing accounts of law’s globality can be usefully sorted into two rubrics, transnational law and global law. By distinguishing law as output and process from law as system and architecture, the essay argues that globalization’s law is both transnational and global, using the analogy to light’s simultaneous nature as wave and particle. After a brief inquiry into globalization and the relevant social and institutional dynamics affecting law, the essay explores “transnational law” and “global law” as conceptual responses to such changes. Accounts of transnational law are best understood as post-modernist socio-legal analyses of law’s contextual normativity, whereas global law accounts are more teleological and modernist, aiming to characterize the emerging valence and architecture of law in a global space. Both understandings are necessary, together with international and domestic law and global justice principles, for a complete understanding of law in a global space.

In examining trade usages in the transnational context, this chapter takes as its starting point the perspective of international commercial arbitration, where a narrow conception of usages has been favored for reasons having to do with nationalized private international law rather than reasons having currency in international arbitration. The general rules and principles that emerge from arbitral practice—a part of business practice—are better understood on a continuum with the narrower trade usages that represent a kind of lex specialis in various industries. A broader conception of trade usages is consistent with the representation of usages in international instruments and would likely provide a better account of current arbitral practice. Trade usages in the transnational context may, therefore, be viewed as comprising not only normative practices peculiar to particular trades, industries, or places, but also rules and principles of international commercial contracts whose recognition affects parties’ reasonable expectations.

Over the past three decades many regulatory measures aimed at countering transnational crime have been adopted. This article maps the development of these measures and examines their relationship with the ‘global rule of law’. The article is structured on the basis of a typology of production of transnational criminal law norms and examines the production and implementation of transnational criminal law via: ‘hard law’ global multilateral conventions; regionalism, focusing on the work of the Council of Europe; ‘soft’ or ‘informal’ law, focusing on the Financial Action Task Force; ‘global administrative law’, expressed by the UN Security Council; and supranational, EU, law. The article then focuses on the extraterritorial reach of transnational criminal law and asks whether lessons can be learnt by the operation of the principle in EU criminal law. The article then assesses the impact of this typology of transnational criminal law making on the global rule of law.

This chapter begins by discussing some preliminaries relating to the way the label of law connects to the object it labels. It briefly concretizes an idea floated in the background of Chapter 1 about better and worse definitions of law and whose interests are served by definitions of law. It then examines the general idea that something called law is perceived in a certain way because it is called law, and how this labelling effect of legality, operating on a rhetorical plane, may be divorced from analytic jurisprudence. Next, the chapter offers eight signals that the label of law creates. It underscores the importance of defining law in accordance with its political and ethical signals. The chapter ends with theoretical ruminations on transnational law and international arbitration.

This chapter evaluates the key accounts of the lex mercatoria to select the most promising concept. Clive Schmitthoff adopted a wide view of the lex mercatoria and included all written measures, embracing codified contract terms, and international conventions within its ambit. The chapter discusses the status of the UCP and INCOTERMS and concludes that they are contract terms and cannot serve as the governing law. The wide view confuses contract terms with legal rules. Berthold Goldman adopted a narrow view and included customary rules and general principles within the lex mercatoria. He attributed norm-creating potential to the international business community, but failed to exclude written measures. Roy Goode’s purist view clarifies that the lex mercatoria consists solely of unwritten trade usage, whereas transnational commercial law includes written measures. The purist view adopts an analytical approach and remedies the isolation of the debate by considering the circularity paradox of opinio juris.

Chapter 6 is devoted to the Abadan Crisis and the circumstances surrounding the decision of the International Court of Justice (ICJ) in the dispute between Britain and Iran over the ownership of oil in Iran, known as the Anglo-Iranian Oil Company case. The Iranians’ argument for their sovereign right to oil was based on the corporate veil of the state as a justification for the expropriation of the company’s assets and the corporate veil of the company to sustain the separation between ownership (the British Government) and control (the company’s management). The Iranian position used an old toolbox to promote a vision of a new postcolonial world order based on equality and distributive justice. The chapter juxtaposes the Iranian position with Philip Jessup’s theory of transnational law and the hermeneutics of legal realism in the British position and chronicles how the Iranian strategy and success in the ICJ eventually ushered the shift toward a new international investment law regime.

This concluding chapter addresses transnational law. Public international law and European Union law are by no means the only transnational legal orders. There are also smaller transnational systems in South America or Africa which are modeled on European Union law, but which lag far behind in terms of importance and level of sophistication. The context of public international law is marked by a number of features which distinguish it from the various contexts of national law. At a very general level, public international law is characterized by a stronger interweaving of fact and law; heightened importance of politics; and a less technical approach to norms, their text, and their meaning than lawyers may be accustomed to. Meanwhile, European Union law is an independent legal system which, at least in its present, highly-developed form, has much more in common with national legal systems than with public international law.