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Abstract: This chapter traces the development of the concept of Transnational Law since Philip Jessup's Storrs Lectures at Yale Law School in 1955. Jessup had famously challenged the doctrinal and conceptual boundaries of both public and private international law to suggest that another concept be more adequately suited to capture the myriad normative and transactional relations across national borders. "I shall use", Jessup wrote, "the term 'transnational law' to include all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories". Transnational law since became a promising perspective from which to assess the regulatory challenges arising in an increasingly interdependent, globalizing world. The following chapter touches on a number of key areas where the idea of transnational law has proven most fruitful and provocative (lex mercatoria, corporate governance, public international law, human rights litigation) before drawing some conclusions for a methodological understanding of transnational law and its consequences for law school curriculum reform.
transnational law, law school curriculum reform, lex mercatoria, corporate governance, public international law, human rights litigation
Abstract: This paper, which selectively focuses on the contested concept of Corporate Social Responsibility [CSR], forms part of a larger research project on the evolution of corporate governance. This research posits the evolution of corporate governance along three historical paradigms: first, the economic/industrial organization paradigm, second, the financial paradigm, and third, the knowledge paradigm. With regard to CSR, the paper explores the promises and shortcomings of the concept against the background of an evolutionary theory of corporate governance. The identification of three historical-conceptual paradigms allows us to trace the development of the relation between a general discourse on corporate governance regulation [CGR] on the one hand and a more specialized, often polemic debate over corporate (social, environmental, human rights) responsibilities on the other. On the basis of the review of the three paradigms of CSR over the course of more than one hundred years, the paper concludes that there is no convincing justification to separate the general Corporate Governance from the more specific CSR discourse when assessing the nature of the corporation. Instead, it is argued that a more adequate understanding of what defines a corporation is gained when capturing its embedded nature in a continuously changing domestic, global and functional environment. Besides being both a legal fiction and an economic actor, the business corporation is assuming a host of other roles in a functionally differentiated global society. The paper suggests that the generation and dissemination of knowledge, both internally and externally, has become the defining feature of the firm. The corporation as a knowledge actor succeeds the prior stages of assessing it as a private, political or financial actor, without however erasing these dimensions of the firm. In that, the history of the corporation - as concept and reality - shares important features with that of the state - as concept and as fact.
corporate social responsibility, corporate governance, financialisation, economic sociology, knowledge society, uncertainty, risk, management
Abstract: This paper analyzes the contemporary emergence of neo-formalist and neo-functionalist approaches to law-making at a time when the state is seeking to reassert, reformulate and reconceptualize its regulatory competence, both domestically and transnationally. While the earlier turn to alternative regulation modes, conceptualized under the heading of "legal pluralism," "responsive law," or "reflexive law" in the 1970s and 1980s, had aimed at a more socially responsive, contextualized, and ultimately learning mode of legal intervention, the contemporary revival of functionalist jurisprudence and its reliance on "social norms" embraces a limitation model of legal regulation. After revisiting the Legal Realist critique of Formalism and the formulation of functionalist regulation as a progressive agenda, this paper compares the American and German experiences with the rise of the social interventionist state in order to ask where law stands "after the welfare state" at the outset of the twenty-first century.
neo-formalism, neo-functionalism, law-making, legal regulation, rule of law, welfare state, responsive law, reflexive law
Abstract: On 23 October 2007, the European Court of Justice handed down its much-awaited Volkswagen decision (Case C-112/2005), following a suit launched by the Commission against the Federal Republic of Germany in 2005. The Volkswagen statute, through which first the Federal government together with the Land (federal state) of Niedersachsen (Lower Saxony), later only Lower Saxony, had reserved a veto against majority acquisition while only holding a fifth of all shares, had come into the Commission's purview as part of its large-scale attempts at reforming and modernizing European company law. The preparatory steps in that regard had been the suits brought by the Commission with regard to other, 'golden share' provisions under Portuguese, French, Belgian and English company laws in recent years. Yet, the Volkswagen decision of the ECJ is of interest in more than one respect. Not only does it constitute a continuation and further accentuation of a line of argument that the Court has been unfolding over past few years with regard to the Member State provisions in conflict with the EC's guarantee of the free movement of capital as laid down in Art. 56 EC. In addition, the impact of the ECJ's new ruling will have to be assessed in the context of a high-powered regulatory field, in which member states, the Commission, and the Court have been finding themselves in an ongoing negotiation and contestation of historically grown company law regimes and the pressures of globalizing capital markets. In that regard, the Volkswagen decision raises a host of questions relating to the Commission's future agenda of corporate governance reform on the one hand and the persisting differences among member states' corporate law regimes on the other. The following article lays out the Court's reasoning, before observing both the immediate and the more long-term effect of the decision.
Corporate Governance, European Corporate Law, Volkswagen, Golden Shares, Co-determination, Works Councils
Abstract: The Trail Smelter Arbitrations of 1938 and 1941 still figure as landmark cases in International Environmental law, despite the fact that the debate continues what lessons ought best to be drawn from these proceedings. In the context of contemporary work in the area of transnational corporate activity, wrongful corporate behaviour such as environmental harm or human rights abuses, Trail Smelter can serve as a starting point for the study of effective regulation of trans-territorialized conduct of private actors. The paper highlights the challenges faced by both the persisting attempts to sue multinational corporations before domestic courts and those hoping for efficient outcomes resulting from corporate self-regulation, predominantly under the heading of corporate social responsibility (CSR). The paper places both discussions against the background of an emerging transnational law of corporate regulation, which is characterized by a mixture of domestic and international, public and private regulatory instruments. It is against this background that the lessons from Trail Smelter for the regulation of corporate conduct must be drawn with respect to the transformation of state regulation and the increasing reliance on private self-regulation.
Trail Smelter, corporate, public, private, self-regulation
Abstract: This paper engages the concept of transnational law (TL) in a way that goes beyond the by now accustomed usages with regard to the development of legal norms and the observation of legal action across nation-state boundaries, involving both state and nonstate actors. The concept of TL can serve to illustrate a much further-reaching set of developments in norm creation and legal regulation. TL is here understood not only as a body of legal norms, but it is also employed as a methodological approach to illustrate common and shared challenges and responses to legal regulatory systems worldwide. In the case of corporate governance, TL captures the specific regulatory mix of formal, hard, public regulation, on the one hand and of informal, soft, private regulation, on the other, that characterizes the contemporary evolution of corporate governance norms. Corporate governance norms give testimony of an ongoing search for answers to persisting problems in the organization of the firm, the distribution of power between shareholders, stakeholders, and the firm, as well as the responsibility of the corporation to its environment while - at the same time - reflecting on fundamental changes of the nature of norm creation and legal interpretation. While this approach is likely already to undermine some of the contentions regarding a universal convergence of corporate governance systems towards an outsider-control, shareholder-value-maximization model at the "end of history of corporate law," its risks lie in the misappropriation of the described processes of private ordering as processes of natural evolution. After all, the shift away from formal law making to processes of societal self-regulation - as reflected in the rise of corporate governance codes, standards, best practices or, in the area of labor law, of codes of conduct and core labor rights - might turn out to be a less fortunate answer to the redistributive and participatory questions that are posed when one views corporate governance in the context of a larger set of welfare state norms, comprising not only company law and securities regulation, but also labor and employment law, industrial relations, and insolvency law. Eventually, a careful study of the transformation of the process of law making and rule enforcement suggests the necessity of taking a broader view on corporate governance than is often the case. Seen against the background of a globalization of economic activity, capital flows, and the erosion of many protective norms and rights - in particular in the area of labor law - the study of transnational corporate governance can contribute to a better understanding of the regulatory challenges of a globalized market economy.
Globalization, Transnational Law, Varieties of Capitalism, Corporate Governance, Labor Law, Corporate Governance Codes, Codes of Conduct, Core Labor Rights, Reflexive Law
Abstract: This paper focuses on contract law as a central field in contemporary regulatory practice. In recent years, "governance by contract" has emerged as the central concept in the context of domestic privatization, domestic and transnational commercial relations and law-and-development projects. Meanwhile, as a result of the neo-formalist attack on contract law, "governance of contract" through contract adjudication, consumer protection law and judicial intervention into private law relations has come under severe pressure. Building on early historical critique of the formalist foundations of an allegedly private law of the market, the paper assesses the current justifications for contractual governance and posits that only an expanded legal realist perspective can adequately explain the complex nature of contractual agreements in contemporary practice. The paper argues for an understanding of contracts as complex societal arrangements that visibilize and negotiate conflicting rationalities and interests. Institutionally, contractual governance has been unfolding in a complex, historically grown and ideologically continually contested regulatory field. Governance through contract, then, denotes a wide field of conflicting concepts, ideas and symbols, that are themselves deeply entrenched in theories of society, market and the state. From this perspective, we are well advised to study contracts in their socio-economic, historical and cultural context. A careful reading of scholars such as Henry Sumner Maine, Morris Cohen, Robert Hale, Karl Llewellyn, Stewart Macaulay and Ian Macneil offers a deeper understanding of the institutional and normative dimensions of contractual governance. Their analysis is particularly helpful in assessing currently ongoing shifts away from a welfare state based regulation (governance) of contractual relations. Such shifts are occurring on two levels. First, they take place against the backdrop of a neo-liberal critique of government interference into allegedly private relations. Secondly, the increasingly influential return to formalism in contract law, which privileges a functionalist, purportedly technical and autonomous design and execution of contractual agreements over the view of regulated contracts, is linked to a particular concept of sovereignty. The ensuing revival of "freedom of contract" occurs in remarkable neglect of the experiences of welfare state adjudication of private law adjudication and a continuing contestation of the "political" in private relationships. The paper takes up the Legal Realists' search for the 'basis of contract', but seeks to redirect the focus from the traditional perspective on state vs. market to a disembedded understanding of contractual governance as delineating multipolar and multirational regulatory regimes. Where Globalization has led to a fragmentation, disembeddedness and transnationalization of contexts and, thus, has been challenging traditional understanding of embeddedness, the task should no longer be to try applying a largely nation-state oriented Legal Realist perspective and critique to the sphere of contemporary contractual governance, but - rather - to translate its aims into a more reflexive set of instruments of legal critique. Even if Globalization has led to a dramatic denationalization of many regulatory fields and functions, it is still not clear, whether and how Globalization replaces, complements or aggravates transformations of societal governance, with and through contract.
contractual governance, globalization, transnationalization, reflexive law
Abstract: This article takes issue with the longstanding oppositional themes of harmonisation versus regulatory competition in European company law. Instead of embracing one approach over the other in exclusivity, the article draws attention to the persisting mixture of approaches to an emerging European-wide law regulating the business corporation. Against the background of an ongoing struggle over identifying the goals and taboos of the European legislator's mandate in regulating the company, the argument put forward here is that this very struggle is reflective of the nature of the evolution of company law in an integrating Europe and a globalising world. European attempts of developing European company law as part of a larger initiative of improving the Union's potential for innovation and competition are thus likely to meet with the challenges that contemporary Nation States are facing when adapting their modes of regulation and representation to the demands of an increasingly complex and decentralised fields of market activities. Situating the law of the business corporation within the larger theme of European integration on the one hand, and of issues of market regulation, domestic, transnational, and international, on the other, suggests the adoption of a systems theory-based approach to understanding the boundaries of law in this multilevel and multipolar process.
Abstract: This article takes issue with the longstanding oppositional themes of harmonisation versus regulatory competition in European company law. Instead of embracing one approach over the other in exclusivity, the article draws attention to the persisting mixture of approaches to an emerging European-wide law regulating the business corporation. Against the background of an ongoing struggle over identifying the goals and taboos of the European legislator's mandate in regulating the company, the argument put forward here is that this very struggle is reflective of the nature of the evolution of company law in an 'integrating Europe and a globalising world'. European attempts of developing European company law as part of a larger initiative of improving the Union's potential for innovation and competition are thus likely to meet with the challenges that contemporary Nation States are facing when adapting their modes of regulation and representation to the demands of an increasingly complex and decentralised fields of market activities. Situating the law of the business corporation within the larger theme of European integration on the one hand, and of issues of market regulation, domestic, transnational, and international, on the other, suggests the adoption of a systems theory-based approach to understanding the boundaries of law in this multilevel and multipolar process.
European Company Law, Regulatory Competition, Harmonization, Societas Europaea, Takeover Law, Corporate Governance
Abstract: The present transformation of European corporate governance regulation mirrors the challenges that have been facing the EUs continuously evolving polity, marked by tensions between centralized integration programs on the one hand and Member States embedded capitalisms, path-dependencies and rent-seeking on the other. As longstanding concerns with remaining obstacles to more mobility for workers, services, business entities and capital in recent years are aligned with post-Lisbon commitments to creating the Worlds leading competitive market, European corporate governance regulation [ECGR] has become exposed to and implicated in a set of highly dynamic regulatory experiments. In this context, New Governance offers itself as both tentative label and immodest proposal for a more responsive and innovative approach to European law making. The following paper assesses the recently emerging regulatory forms in ECGR as illustrations of far-reaching transformations in market governance. The arguable parallels between the EUs regulatory transformation in response to growing legitimacy concerns and the recurring question about whose interests a business corporation is intended to serve, provide the framework for an exploration of current regulatory trajectories in European corporate law that can most adequately be understood as a telling example of transnational legal pluralism.
European Corporate Law, Legal Pluralism, New Governance, Experimentalist Governance, Transnational Law, Executive Compensation
Abstract: Research in corporate governance and in labour law has been characterized by a disjuncture in the way that scholars in each field are addressing organizational questions related to the business enterprise. While labour has eventually begun to shift perspectives from aspirations to direct employee involvement in firm management, as has been the case in Germany, to a combination of 'exit' and 'voice' strategies involving pension fund management and securities litigation, it remains to be seen whether this new stream will unfold as a viable challenge to an otherwise exclusionary shareholder value paradigm. At the same time, recent suggestions made by Delaware Chancery Court Vice Chancellor Strine, to dare think about potentially shared commitments between management and labor - and UCLA's Stephen Bainbridge's response - underline the viability - and, the contestedness - of attempts at moving the corporate governance debate beyond the confines of corporate law proper. While such a wider view had already famously been encouraged by Dean Clarke in his 1986 treatise on Corporate Law (p. 32), mainstream corporate law does not seem to have endorsed this perspective. This paper takes the questionable divide between management and labor within the framework of a limiting corporate governance concept as starting point to explore the institutional dynamics of the corporation, hereby building on the theory of the innovative enterprise, as developed by management theorists Mary O'Sullivan and William Lazonick. Largely due to the sustained distance between corporate and labour law scholars, neither group has effectively addressed their common blind spot: a better understanding of the business enterprise itself. In midst of an unceasing flow of affirmations of the finance paradigm of the corporation on the one hand and 'voice' strategies by labour on the other, it seems to fall to management theorists to draw lessons from the continuing co-existence of different forms of market organization, in which companies appear to thrive. Exploring the conundrum of 'risky' business decisions within the firm, management theorists have been arguing for the need to adopt a more sophisticated organizational perspective on companies operating on locally, regionally and transnationally shaped, often highly volatile market segments. Research by comparative political economists has revealed a high degree of connectivity between corporate governance and economic performance without, however, arriving at such favourable results only for shareholder value regimes. Such findings support the view that corporate governance regimes are embedded in differently shaped regulatory frameworks, characterized by distinct institutions, both formal and informal, and enforcement processes. As a result of these findings, arguments to disassociate issues of corporate governance from those of the firm's (social) responsibility [CSR] have been losing ground. Instead, CSR can be taken to be an essential part of understanding a particular business enterprise. It is the merging of a comparative political economy perspective on the corporation with one on the organizational features, structures and processes of the corporation, which can help us better understand the distribution of power and knowledge within the 'learning firm'.
Corporate Governance, organizational theory, innovative enterprise, learning firm, employee involvement, corporate social responsibility, European/German corporate governance
Abstract: The authors discuss the decision of the Supreme Court of Canada to approve a plan of arrangement privatizing BCE Inc. over the objections of bondholders. Summarizing the arguments for "shareholder primacy" and debenture covenants delimiting contractual rights against boards and management, they argue that an expanded conception of relational contract theory is useful in analyzing the competing claims in the BCE deal and litigation. This approach requires that broader contextual factors are necessary to consider in the functioning of the corporation, especially by after-the-fact decision-makers.
Corporate theory, takeovers, shareholder primacy, contracts, nexus-of-contracts, stakeholder theory of the corporation, relational contract theory, transnational law, legal pluralism
Abstract: In situations of military, political or economic transition, the reassessment of the role of law in the transition process becomes a crucial site of a people's or a nation's negotiating the past, present and future. Allusions to a tabula rasa or an annee zero after traumatic collapses of societal order, however, turn into ill-fated attempts to address the challenges of confronting the past when building the future. The law's concern with nations that struggle with transition expresses itself through hybrid concepts such as transitional or post-conflict justice, restorative justice, or reconciliation. This paper revisits these instantiations and places them in the context of an increasingly transnational discourse on transitional justice. In light of the wealth of law and non-law responses to past injustice around the world today, transitional justice emerges as a form of transnational legal pluralism, highlighting the parallels of regulatory challenges confronting transition and established regimes alike.
Transitional Justice, Law & Development, Law of Occupation, Transnational Law, Memory
Abstract: Legal sociology is in a crisis - or so it is said. The field is not widely represented at Law Faculties today and, the claim goes, is in dire need of a new spirit. Meanwhile, scholars who are working in the area cover a wide array of research questions, ranging from criminology to family law, from urban governance to transitional justice, illustrating thus a fine sensitivity for important and fast evolving areas. This paper argues that indeed our times offer a great host of promising opportunities for legal sociological research. In midst of a truly dramatic economic crisis where anchoring points and orientations have been upset, a broad search for adequate regulatory responses is underway. In this climate of reassessing the lessons of reflexive and responsive law, of legal pluralism and 'law & society' with view to their re-invigoration for our times, legal sociology is itself seemingly undergoing a transformation of its own: today's research methodology must pay heed to the advances made since Weber, Durkheim, Ehrlich and Gurvitch and translate them into a distinctly cross-disciplinary context, comparative and transnational context.
legal sociology, theory of the state, solitude, abandonment, corporate sponsorship, knowledge, legal effectiveness
Abstract: The book under review, After Enron, edited by John Armour and Joseph McCahery, and published by Hart in 2006, presents an excellent and timely collection of observations of the Enron debacle, provided by some of the most astute and informed scholars, and masterfully integrated by two of the finest academics in this field. The editors, Dr John Armour, originally of the Faculty of Law at the University of Cambridge and Member of the Cambridge Centre for Business Research, since 1 July 2007 the Lovells Professor of Law and Finance, and Professor Joseph McCahery, formerly at the University of Tilburg, now of the University of Amsterdam, have succeeded in collecting, conceptualizing and organizing a most comprehensive and intriguing collection of excellent writings on Enron and its aftermath. Their book can aptly serve for a first-blush as for a more in-depth analysis of the problems, whether in research or in teaching of company law courses. Yet, beyond this achievement, the editors are also importantly contributing to a debate, which has for some time now emphasized the need to take a deliberately comparative viewpoint when analyzing the trajectories of corporate law development around the world.
Enron, Accounting Standards, Comparative Corporate Governance, Corporate Governance Reform, Path Dependency
Abstract: It is a well-known and much explored fact that capital market regulation has had a larger share of activity and visible success within the process of European integration than the long-standing efforts towards the establishment of harmonized rules in the area of corporate governance. While a unified, harmonized or effective market-wide corporate governance regime was identified early on as one of the building blocks of the European project, the historically grown, path-dependent varieties in national corporate law systems proved - for the longest time - resistant to ambitious Europeanization efforts. This paper argues that precisely at the time when companies' financing structures were being adapted to globally available and moveable capital, corporate governance rules came under immense pressure to address the interests of world-wide operating investors, and that this development resulted in a dis-embedding of the corporation. The corporation at the end of the 20th century was no longer primarily seen as an organizational entity, but had become a financial vehicle, operating in a regulatory framework largely out of control of domestic company law legislation. This emerging regulatory environment consists of supra-national legislation directed at increased efficiency of regional and global financial markets on the one hand and increasingly incentive-oriented, indirect regulation of corporate governance rules, placed to a large degree within the discretion of market actors. The financialization of corporate governance and the emergence of a transnational legal pluralist regime of applicable rules and standards provides a particular challenge to Karl Polanyi's identified 'double movement' in the regulation of increasingly disembedded markets. And, yet, this is only the first of two analytical steps that must be made to understand the present regulatory challenge. As the study of capital market law and corporate governance in the European Union illustrates, the emerging regimes cannot adequately be represented as either national or international. As they are both and yet neither exclusively, the represent examples of what Saskia Sassen calls 'global assemblages' and what I shall here study as transnational legal pluralism. While Sassen's concept provides for a powerful illustration of the autonomy of self-constituting spaces that comprise human, institutional and technological, digital elements, this framework needs to be complemented by a specifically legal perspective on the evolving forms of regulatory approaches and instruments that are present here.
European Corporate Law, Financial Market Regulation, Corporate Governance, Varieties of Capitalism, Embeddedness, Global Assemblages, Legal Pluralism, Transnational Law
Abstract: In the autumn of 2008, at a time of global reconsideration of the role of states in the regulation of markets, the paper uses the reflection on past experiences with the laissez faire state, the interventionist state, the welfare state and the enabling state as institutional crystallization points in an ongoing learning process of regulatory innovation as a framework to assess contemporary proposals to delegate public international law [PIL] enforcement to market actors. As such, the paper attempts to carve out possible conceptual and political implications of the current proposals against the background of interventionist and post-interventionist market regulation models. However, the translation of nation-state experiences with market regulation onto the global sphere presents a challenge in light of the particular structural qualities of transnational regulatory regimes. The task - both for a reconstructive narrative and for a delegation theory of PIL regulation through market actors - lies in the production of a better understanding of state-market and public-private distinctions in the transnational arena.
Public International Law Enforcement, Market regulation, Interventionist State, Transnational Law, Regulatory Theory, Governance
Abstract: This paper draws out the analogies and connections between long-standing legal sociological insights into pluralistic legal orders and present concerns with the fragmentation of law outside of the nation-state. Within the nation state, the discovery of legal pluralism inspired a larger contestation of concepts of legal formalism, the alleged unity of the legal order and the hierarchy of norms against the background of a consistently advancing process of constitutionalization. This research heightened regulators’ sensitivity for blind spots and exclusionary dynamics in the design of rights, leading inter alia to wide-ranging efforts to render more effective access to justice, legal aid and legal representation. Another important consequence concerned an increased awareness of different levels and sites of norm-creation in various societal areas. Much of this is mirrored by today’s quest for a just, democratic and equitable global legal order, for example in the debate about ‘fragmentation of international law’ or ‘global administrative law’. But, while the legal pluralism debate largely unfolded in the context (and contestation) of relatively mature legal orders and institutions, such institutional frameworks and safeguards are largely absent on the international plane. As a result, the emergence of numerous norm-setting agencies, specialized courts and tribunals and regulatory networks are perceived as obstacles or impediments to the creation of a sound legal order on a global scale, rather than as inherent traits of an evolving legal order.
In order to grasp the increasingly transterritorial nature of regulatory governance it is necessary to revisit the arguments in support of legal pluralism and, in particular, the legal pluralist critique of the association of law with the state. On that basis, it becomes possible to read the currently dominant narrative of the ‘end of law’ in an era of globalization in a different light. Rather than describing the advent of globalization as an end-point of legal development, a transnational perspective seeks to deconstruct the various law-state associations by understanding the evolution of law in relation and response to the development of ‘world society’. The currently lamented lack of democratic accountability, say, in international economic governance, can then be perceived as a further development in a highly differentiated and de-territorialized society. The paper thus rejects the attempts by lawyers to re-align transnational governance actors with traditional concepts of the state or of civil society and, instead, contrasts them with various advances in sociology and anthropology with regard to the evolution of ‘social norms’ and ‘spaces’ of governance and regulation. These perspectives effectively challenge present attempts to conceptualize a hierarchically structure global legal order. The here proposed concept of ‘transnational legal pluralism’ [TLP] goes beyond Philip Jessup’s 1956 idea of ‘transnational law’, through which he sought to complement and challenge Public and Private International Law. TLP brings together insights from legal sociology and legal theory with research on global justice, ethics and regulatory governance to illustrate the transnational nature of law and regulation, always pushing against the various claims to legal unity and hierarchy made over time.
Legal Pluralism, Fragmentation of law, Regulatory Governance, Transnational Law, Private Governance Regimes, Regulatory Networks, Rough Consensus, Running Code
Abstract: The contemporary search for new forms of international governance, of which the debate around lex mercatoria is but an example, should attentively build on the lessons on public and private ordering learned in the nation state. Sophisticated commercial practices on a transnational scale, while necessitating adaptive and flexible procedures within an adequate institutional framework, involve many of the same normative questions posed by economic law in the nation state. The following article critically discusses the claims made in the lex mercatoria debate as to the rise of a transnational private law society ('Privatrechtsgesellschaft') in which political problems of exclusion and freedom have allegedly been resolved by the universal spread of private autonomy. Against similar images of a world exclusively made up of independent, self-relying market citizens, it is argued that if a conception of rights is to be rescued from the deathbed of the traditional nation state, then the learning experiences made within its confines are well worth considering in light of the pressing legitimacy needs of emerging institutions and polities.
Abstract: The book under review addresses the complex interaction of hard and soft law, legal-political intervention and social practice and self-regulation, public and private law, and rules of social praxis and behaviour in transnational law. While the increased contractualization of public governance and the growing involvement of private actors in public administration has, for some time now, been the subject of legal analysis in domestic contract law and administrative law scholarship, these findings have attracted little attention from commercial and international law scholars and practitioners. Cutler's book argues for the need to embrace a more comprehensive view of the complexity of developments in national, international and transnational law, acknowledging the emergence of new norm-generating actors and the challenge posed by them and their norms to the otherwise neatly defined realms of national and international legal orders. Exploring the arguments made against and in favour of lex mercatoria, Cutler can be read as arguing for the paradoxical re-entry of the dividing lines between state and civil society, public and private, even if and because the two opposing poles cannot be married in a single unifying concept but only together constitute the poles of our orientation.
Abstract: The present transformation of European corporate governance regulation mirrors the challenges that have been facing the EU's continuously evolving polity, marked by tensions between centralised integration programmes, on the one hand, and Member State's embedded capitalisms, path-dependencies and rent-seeking, on the other. As longstanding concerns with remaining obstacles to more mobility for workers, services, business entities and capital in recent years are aligned with post-Lisbon commitments to creating the world's leading competitive market, European corporate governance regulation (ECGR) has become exposed to and implicated in a set of highly dynamic regulatory experiments. In this context, New Governance offers itself as both a tentative label and immodest proposal for a more responsive and innovative approach to European law making. The following article assesses the recently emerging regulatory forms in ECGR as illustrations of far-reaching transformations in market governance. The arguable parallels between the EU's regulatory transformation in response to growing legitimacy concerns and the recurring question about whose interests a business corporation is intended to serve, provide the framework for an exploration of current regulatory trajectories in European corporate law that can most adequately be understood as a telling example of transnational legal pluralism.
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