Transformations of Commercial Law: New Forms of Legal Certainty for Globalized Exchange Processes?

TRANSFORMING THE GOLDEN AGE NATION STATE, pp. 83-108, Achim Hurrelmann, Stephan Leibfried, Kerstin Martens and Peter Mayer, eds., Palgrave Macmillan, 2007

26 Pages Posted: 29 Jun 2010 Last revised: 28 Jul 2011

See all articles by Gralf-Peter Calliess

Gralf-Peter Calliess

University of Bremen - Faculty of Law

Wioletta Konradi

affiliation not provided to SSRN

Holger Nieswandt

LEMEX

Fabian P. Sosa

University of Bremen

Thomas Dietz

University of Muenster; University of Oxford, Institute of European and Comparative Law

Date Written: March 7, 2007

Abstract

Since the golden age of the nation state, the extent to which commerce is conducted across borders has risen substantially. Economic globalization thus has led to a shift in the demand structure for institutions that support commerce. Over the past forty years the need for institutions adapted to international commerce has increased. In other words, a trend emerged towards the internationalization of the state function to provide for the normative good of legal certainty for commerce. Since the nation states’ attempts to shift the regulatory responsibility for the institutional organization of cross-border commerce to public international organizations and to exercise the operational responsibility by means of judicial cooperation in commercial matters according to the thus created international treaties have had little success, the normative vacuum left by nation states was filled by all kinds of private governance mechanisms and private legal services for international commerce. As a result, private or hybrid actors took over not only operational, but also regulatory responsibility. These trends towards the internationalization and privatization of responsibility for the provision of legal certainty combine to what we call the transnationalization of commercial law. While the state continues to take responsibility for domestic commerce, economic globalization leads to a decrease in the relative weight of public institutions and to a corresponding increase in the overall importance of private ordering with regard to the provision of the normative good of legal certainty for commerce.

In order to learn more about how cross-border commerce in fact is institutionally organized, we conducted field studies based on interviews with involved merchants and lawyers as well as a participant observation and file analysis in a law firm. We present results of three studies, one on relational contracting in the field of international outsourcing of software development, another on the lex mercatoria in the field of international timber trade, and a third on the role of law firms in the organization of cross-border commerce.

Suggested Citation

Calliess, Gralf-Peter and Konradi, Wioletta and Nieswandt, Holger and Sosa, Fabian P. and Dietz, Thomas, Transformations of Commercial Law: New Forms of Legal Certainty for Globalized Exchange Processes? (March 7, 2007). TRANSFORMING THE GOLDEN AGE NATION STATE, pp. 83-108, Achim Hurrelmann, Stephan Leibfried, Kerstin Martens and Peter Mayer, eds., Palgrave Macmillan, 2007. Available at SSRN: https://ssrn.com/abstract=1631662

Gralf-Peter Calliess (Contact Author)

University of Bremen - Faculty of Law ( email )

Universitaet Bremen
Fachbereich Rechtswissenschaft
D - 28353 Bremen
Germany
+49-421-218-66207 (Phone)
+49-421-218-66212 (Fax)

HOME PAGE: http://www.handelsrecht.uni-bremen.de/

Wioletta Konradi

affiliation not provided to SSRN ( email )

Holger Nieswandt

LEMEX ( email )

Bremen, D-28359
Germany

HOME PAGE: http://www.lemex.uni-bremen.de

Fabian P. Sosa

University of Bremen ( email )

Universitaetsallee GW I
Bremen, D-28334
Germany

Thomas Dietz

University of Muenster ( email )

Schlossplatz 2
Muenster, D-48149
Germany

University of Oxford, Institute of European and Comparative Law ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

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