Alexander Somek
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199542086
- eISBN:
- 9780191715518
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199542086.001.0001
- Subject:
- Law, Philosophy of Law, EU Law
This new and innovative study explains that a transnational regime is based on a conception of citizenship that is different from the conception underlying a constitutional democracy. Citizens are ...
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This new and innovative study explains that a transnational regime is based on a conception of citizenship that is different from the conception underlying a constitutional democracy. Citizens are deemed to be essentially separate from one another. They abandon larger society to itself and pursue their good in the private sphere. In lieu of trust and reliance in their own power to bring about change through common action, they hope to benefit from entrusting ‘problem-solving’ to international networks of expertise. Put bluntly, citizens of this kind exhibit a strong commitment to individualism. The book shows how individualism is reflected in the regulatory authority that the Union claims for itself, in particular as regards the regulation of the internal market. The paradigmatic case studied in this book affects the regulation of smoking and the marketing of tobacco products. Throughout this book, continuity is established with two of the historically most influential modes of constitutional reasoning: the constitutional theory of the French revolution, on the one hand, and the ancient tradition of linking different types of public power with the composition of the citizen's soul, on the other. The study is true and original — unclassifiable in its line and style of argument. It is at one and the same time an essay in the contemporary history of public culture and taste, a study of European Union competence, an exercise in pure normative political theory, and a study in constitutional method and culture with much comparative and historical material.Less
This new and innovative study explains that a transnational regime is based on a conception of citizenship that is different from the conception underlying a constitutional democracy. Citizens are deemed to be essentially separate from one another. They abandon larger society to itself and pursue their good in the private sphere. In lieu of trust and reliance in their own power to bring about change through common action, they hope to benefit from entrusting ‘problem-solving’ to international networks of expertise. Put bluntly, citizens of this kind exhibit a strong commitment to individualism. The book shows how individualism is reflected in the regulatory authority that the Union claims for itself, in particular as regards the regulation of the internal market. The paradigmatic case studied in this book affects the regulation of smoking and the marketing of tobacco products. Throughout this book, continuity is established with two of the historically most influential modes of constitutional reasoning: the constitutional theory of the French revolution, on the one hand, and the ancient tradition of linking different types of public power with the composition of the citizen's soul, on the other. The study is true and original — unclassifiable in its line and style of argument. It is at one and the same time an essay in the contemporary history of public culture and taste, a study of European Union competence, an exercise in pure normative political theory, and a study in constitutional method and culture with much comparative and historical material.
Russell A. Miller and Peer C. Zumbansen
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199795208
- eISBN:
- 9780199919307
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199795208.003.0012
- Subject:
- Law, Public International Law
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 ...
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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.Less
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.
Russel A. Miller and Peer C. Zumbansen (eds)
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199795208
- eISBN:
- 9780199919307
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199795208.001.0001
- Subject:
- Law, Public International Law
This book assembles the works of scholars from around the world, forming a contextual demonstration of the increasing encounters and tensions among legal cultures. In recognizing the lack of ...
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This book assembles the works of scholars from around the world, forming a contextual demonstration of the increasing encounters and tensions among legal cultures. In recognizing the lack of consensus on how to define transnational law, the text includes carefully selected works that originally appeared in the German Law Journal in order to help show the challenges of defining transnational law, and to help with the appreciation of the differing approaches towards it. Some, for example, maintain that the processes of transnationalization has created a space for a new, discrete corpus of law—a field in its own right that is the equal of public international law or conflict of laws. Others understand the perceived transnational phenomena to be illustrations of an emerging legal culture that no longer fits the traditional distinction between national and international jurisdictions. In offering different approaches to such an understanding of transnational law, the chapters also bring out the important consequences of a more global outlook in legal scholarship, legal practice, and legal education.Less
This book assembles the works of scholars from around the world, forming a contextual demonstration of the increasing encounters and tensions among legal cultures. In recognizing the lack of consensus on how to define transnational law, the text includes carefully selected works that originally appeared in the German Law Journal in order to help show the challenges of defining transnational law, and to help with the appreciation of the differing approaches towards it. Some, for example, maintain that the processes of transnationalization has created a space for a new, discrete corpus of law—a field in its own right that is the equal of public international law or conflict of laws. Others understand the perceived transnational phenomena to be illustrations of an emerging legal culture that no longer fits the traditional distinction between national and international jurisdictions. In offering different approaches to such an understanding of transnational law, the chapters also bring out the important consequences of a more global outlook in legal scholarship, legal practice, and legal education.
Nicole Roughan
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199671410
- eISBN:
- 9780191751783
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199671410.001.0001
- Subject:
- Law, Philosophy of Law
This book offers a novel theory of legitimate authority to explain interactions and relationships between state, transnational, international, or other pluralist legal orders. It argues that such ...
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This book offers a novel theory of legitimate authority to explain interactions and relationships between state, transnational, international, or other pluralist legal orders. It argues that such plurality of law should be explained and evaluated by reference to plurality of legitimate authority, rather than formal doctrines or constitutional rules which are likely to be overlapping or even conflicting. This book argues, however, that existing state-centric accounts of authority cannot adequately explain plurality of legitimate authority – the presence of multiple legitimate authorities over the same subjects. Instead, this book presents a pluralist account of authority, in which overlap and interaction between authorities generates relativity. It offers a full theory of ‘relative authority,’ in which legitimate authority is shared or interdependent - between states, regional/international bodies, transnational orders or sub-state governments - and in which relationships between authorities are conditions of their legitimacy. This book then examines the relative authority account’s implications for understanding international and transnational law, European constitutional pluralism, and inter-authority relationships inside the state. It argues that the relative authority account can be used to both explain abstract principles governing inter-authority relationships in each of these fields, and to evaluate any specific inter-authority relationships that they entail. To illustrate that application, the book concludes with a full-scale case study of inter-authority relationships between state and indigenous authorities in New Zealand.Less
This book offers a novel theory of legitimate authority to explain interactions and relationships between state, transnational, international, or other pluralist legal orders. It argues that such plurality of law should be explained and evaluated by reference to plurality of legitimate authority, rather than formal doctrines or constitutional rules which are likely to be overlapping or even conflicting. This book argues, however, that existing state-centric accounts of authority cannot adequately explain plurality of legitimate authority – the presence of multiple legitimate authorities over the same subjects. Instead, this book presents a pluralist account of authority, in which overlap and interaction between authorities generates relativity. It offers a full theory of ‘relative authority,’ in which legitimate authority is shared or interdependent - between states, regional/international bodies, transnational orders or sub-state governments - and in which relationships between authorities are conditions of their legitimacy. This book then examines the relative authority account’s implications for understanding international and transnational law, European constitutional pluralism, and inter-authority relationships inside the state. It argues that the relative authority account can be used to both explain abstract principles governing inter-authority relationships in each of these fields, and to evaluate any specific inter-authority relationships that they entail. To illustrate that application, the book concludes with a full-scale case study of inter-authority relationships between state and indigenous authorities in New Zealand.
Robert Wai
- Published in print:
- 2014
- Published Online:
- March 2015
- ISBN:
- 9780198727620
- eISBN:
- 9780191793684
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198727620.003.0003
- Subject:
- Law, Private International Law, Constitutional and Administrative Law
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 ...
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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.Less
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.
H. Patrick Glenn
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199682423
- eISBN:
- 9780191762888
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199682423.003.0013
- Subject:
- Law, Constitutional and Administrative Law
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 ...
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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.Less
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.
Susanne Baer
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199795208
- eISBN:
- 9780199919307
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199795208.003.0015
- Subject:
- Law, Public International 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 ...
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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.Less
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.
Chris Thornhill
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199669318
- eISBN:
- 9780191749353
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199669318.003.0003
- Subject:
- Law, Constitutional and Administrative Law
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 ...
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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.Less
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.
Karen Knop
- Published in print:
- 2010
- Published Online:
- June 2013
- ISBN:
- 9780804771696
- eISBN:
- 9780804777223
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804771696.003.0003
- Subject:
- Law, Comparative Law
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 ...
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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.Less
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.
Fabien Gélinas (ed.)
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780199916016
- eISBN:
- 9780190237073
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199916016.001.0001
- Subject:
- Law, Private International Law, Company and Commercial Law
If a dispute between commercial parties reaches the stage of arbitration, the cause is usually ambiguous contract terms, and the arbitrator often resolves the dispute by applying trade usages, either ...
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If a dispute between commercial parties reaches the stage of arbitration, the cause is usually ambiguous contract terms, and the arbitrator often resolves the dispute by applying trade usages, either to interpret the ambiguous terms or to determine what the given contract’s terms really are. This recourse to trade usages does not create many problems on the domestic level, but international arbitrations make the topic rather complex and confusing. This book provides a clear explanation of how usages, and more generally the implicit or implied content of contracts, are approached by some of the most influential legal systems and under uniform law instruments dealing with international commercial contracts. Building on these approaches and taking account of arbitral practice, this book then explores possible conceptual frameworks to help shape the emerging transnational law of trade usage. Part I covers the treatment and conceptual grounding of usages and implied terms in the positive law of influential jurisdictions. Part II defines the approach to usages and implied terms adopted in the design and implementation of important uniform law instruments dealing with international business contracts, as well as in the practice of international commercial arbitration. Part III concludes the book with an outline of what the conceptual grounding of trade usages could be in the transnational law of commercial contracts.Less
If a dispute between commercial parties reaches the stage of arbitration, the cause is usually ambiguous contract terms, and the arbitrator often resolves the dispute by applying trade usages, either to interpret the ambiguous terms or to determine what the given contract’s terms really are. This recourse to trade usages does not create many problems on the domestic level, but international arbitrations make the topic rather complex and confusing. This book provides a clear explanation of how usages, and more generally the implicit or implied content of contracts, are approached by some of the most influential legal systems and under uniform law instruments dealing with international commercial contracts. Building on these approaches and taking account of arbitral practice, this book then explores possible conceptual frameworks to help shape the emerging transnational law of trade usage. Part I covers the treatment and conceptual grounding of usages and implied terms in the positive law of influential jurisdictions. Part II defines the approach to usages and implied terms adopted in the design and implementation of important uniform law instruments dealing with international business contracts, as well as in the practice of international commercial arbitration. Part III concludes the book with an outline of what the conceptual grounding of trade usages could be in the transnational law of commercial contracts.
Kevin E. Davis
- Published in print:
- 2019
- Published Online:
- August 2019
- ISBN:
- 9780190070809
- eISBN:
- 9780190070830
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190070809.003.0001
- Subject:
- Law, Public International Law
This chapter introduces the concept of transnational bribery law, as well as the associated anti-bribery regime, and describes both the dominant approach to its design and an important critique. ...
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This chapter introduces the concept of transnational bribery law, as well as the associated anti-bribery regime, and describes both the dominant approach to its design and an important critique. Transnational bribery law is defined by four questions: What types of conduct should be targeted? Which actors ought to be considered complicit? What sanctions ought to be imposed? Who should bear the benefits and burdens of imposing those sanctions? The dominant approach to these questions can be called the OECD paradigm. That paradigm generally presumes that legal institutions outside the state whose official has been bribed ought to prohibit a broad range of conduct, target a wide range of actors, impose severe sanctions, and involve as many agencies as possible in enforcement. The anti-imperialist critique challenges the OECD paradigm in terms of effectiveness, efficiency, fairness, due process, and legitimacy. An inclusive experimentalist approach offers a way to reconcile these competing views.Less
This chapter introduces the concept of transnational bribery law, as well as the associated anti-bribery regime, and describes both the dominant approach to its design and an important critique. Transnational bribery law is defined by four questions: What types of conduct should be targeted? Which actors ought to be considered complicit? What sanctions ought to be imposed? Who should bear the benefits and burdens of imposing those sanctions? The dominant approach to these questions can be called the OECD paradigm. That paradigm generally presumes that legal institutions outside the state whose official has been bribed ought to prohibit a broad range of conduct, target a wide range of actors, impose severe sanctions, and involve as many agencies as possible in enforcement. The anti-imperialist critique challenges the OECD paradigm in terms of effectiveness, efficiency, fairness, due process, and legitimacy. An inclusive experimentalist approach offers a way to reconcile these competing views.
Frank J. Garcia
- Published in print:
- 2016
- Published Online:
- November 2016
- ISBN:
- 9780190647759
- eISBN:
- 9780190647766
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190647759.003.0003
- Subject:
- Law, Public International 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 ...
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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.Less
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.
Fabien Gélinas
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780199916016
- eISBN:
- 9780190237073
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199916016.003.0012
- Subject:
- Law, Private International Law, Company and Commercial Law
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 ...
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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.Less
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.
Thomas Schultz
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199641956
- eISBN:
- 9780191747793
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199641956.003.0007
- Subject:
- Law, Public International Law, Philosophy of 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 ...
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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.Less
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.
Valsamis Mitsilegas
- Published in print:
- 2017
- Published Online:
- October 2017
- ISBN:
- 9780190848194
- eISBN:
- 9780190848217
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190848194.003.0003
- Subject:
- Law, Public International Law
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 ...
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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.Less
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.
Joshua D H Karton
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199658008
- eISBN:
- 9780191757914
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199658008.001.0001
- Subject:
- Law, Private International Law
This study proposes a theory of international arbitration culture, tests this theory against real-world outcomes, and uses it to make predictions about the contract law principles that international ...
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This study proposes a theory of international arbitration culture, tests this theory against real-world outcomes, and uses it to make predictions about the contract law principles that international arbitrators are likely to favour. Drawing on interviews with prestigious practitioners from a range of jurisdictions, as well as published arbitral awards, the writings of international arbitrators, and available statistical data on international arbitration, it presents a comparative analysis of arbitral and judicial responses to contract law issues. Part I develops a theory of arbitral decision-making as influenced by a legal culture specific to the international commercial arbitration community. It identifies the specific social norms that make up that culture and considers how these norms might affect arbitrators’ decision-making on matters of substantive contract law. Part II tests the explanatory power of the theory developed in Part I by applying it to published decisions of international commercial arbitrators on two discrete areas of contract law: suspension of performance in response to non-performance and the interpretation of contracts. These case studies demonstrate that arbitrators and judges are likely to take divergent approaches, even when they are applying the same substantive laws. This divergence is explicable on the basis of international arbitration’s unique culture. Finally, the cultural theory of international arbitral decision-making is applied to make predictions about the ways that contract law is likely to evolve through the decisions of international arbitratorsLess
This study proposes a theory of international arbitration culture, tests this theory against real-world outcomes, and uses it to make predictions about the contract law principles that international arbitrators are likely to favour. Drawing on interviews with prestigious practitioners from a range of jurisdictions, as well as published arbitral awards, the writings of international arbitrators, and available statistical data on international arbitration, it presents a comparative analysis of arbitral and judicial responses to contract law issues. Part I develops a theory of arbitral decision-making as influenced by a legal culture specific to the international commercial arbitration community. It identifies the specific social norms that make up that culture and considers how these norms might affect arbitrators’ decision-making on matters of substantive contract law. Part II tests the explanatory power of the theory developed in Part I by applying it to published decisions of international commercial arbitrators on two discrete areas of contract law: suspension of performance in response to non-performance and the interpretation of contracts. These case studies demonstrate that arbitrators and judges are likely to take divergent approaches, even when they are applying the same substantive laws. This divergence is explicable on the basis of international arbitration’s unique culture. Finally, the cultural theory of international arbitral decision-making is applied to make predictions about the ways that contract law is likely to evolve through the decisions of international arbitrators
Thomas Schultz
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199641956
- eISBN:
- 9780191747793
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199641956.003.0003
- Subject:
- Law, Public International Law, Philosophy 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 ...
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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.Less
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.
Pietro Ortolani
- Published in print:
- 2019
- Published Online:
- August 2019
- ISBN:
- 9780198842187
- eISBN:
- 9780191878206
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198842187.003.0017
- Subject:
- Law, Intellectual Property, IT, and Media Law, Company and Commercial Law
This chapter argues that blockchain technologies structurally tend towards ‘judicialization’ and challenge the traditional, state-centric notions of jurisdiction and enforcement. After an ...
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This chapter argues that blockchain technologies structurally tend towards ‘judicialization’ and challenge the traditional, state-centric notions of jurisdiction and enforcement. After an introductory section, section II sets the scene by locating the emergence of blockchain technologies within the broader debate concerning the relationship between national and transnational law. Such a contextualization is crucial in order to develop a reliable understanding of the impact of this set of technologies on the state’s capacity to preserve its central role in the administration of justice through a system of courts. Against this background, section III investigates the effect of blockchains and smart contracts on the notion of jurisdiction, drawing lessons from the historical evolution of the concept and applying them to the current technological reality. Relying on empirical data, it is argued that the growth of blockchain technologies has given rise to a proliferation of private arbitral systems, generating a new division of labour between state courts and private adjudication. Finally, section IV of the chapter considers the emergence of self-enforcing smart contracts and its consequences for the traditional view whereby the state maintains a monopoly over the use of force.Less
This chapter argues that blockchain technologies structurally tend towards ‘judicialization’ and challenge the traditional, state-centric notions of jurisdiction and enforcement. After an introductory section, section II sets the scene by locating the emergence of blockchain technologies within the broader debate concerning the relationship between national and transnational law. Such a contextualization is crucial in order to develop a reliable understanding of the impact of this set of technologies on the state’s capacity to preserve its central role in the administration of justice through a system of courts. Against this background, section III investigates the effect of blockchains and smart contracts on the notion of jurisdiction, drawing lessons from the historical evolution of the concept and applying them to the current technological reality. Relying on empirical data, it is argued that the growth of blockchain technologies has given rise to a proliferation of private arbitral systems, generating a new division of labour between state courts and private adjudication. Finally, section IV of the chapter considers the emergence of self-enforcing smart contracts and its consequences for the traditional view whereby the state maintains a monopoly over the use of force.
Orsolya Toth
- Published in print:
- 2017
- Published Online:
- March 2017
- ISBN:
- 9780199685721
- eISBN:
- 9780191765711
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685721.003.0003
- Subject:
- Law, Company and Commercial Law, Private International Law
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, ...
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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.Less
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.
Uwe Kischel
- Published in print:
- 2019
- Published Online:
- April 2019
- ISBN:
- 9780198791355
- eISBN:
- 9780191833830
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198791355.003.0011
- Subject:
- Law, Comparative Law, Constitutional and Administrative Law
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 ...
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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.Less
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.
