Commercial Law Intersections

56 Pages Posted: 23 Apr 2020 Last revised: 28 Apr 2021

See all articles by Giuliano G. Castellano

Giuliano G. Castellano

The University of Hong Kong, Faculty of Law

Andrea Tosato

University of Nottingham, School of Law; University of Pennsylvania Law School

Date Written: April 28, 2021

Abstract

Commercial law is not a single, monolithic entity. It has grown into a dense thicket of subject-specific branches that govern a broad range of transactions and corporate actions. When one of such dealings or activities falls concurrently within the purview of two or more of these commercial law branches—such as corporate law, intellectual property law, secured transactions law, conduct and prudential regulation—an overlap materializes. We refer to this legal phenomenon as a commercial law intersection (CLI).

CLIs are ubiquitous. Notable examples include traditional commercial transactions, such as bank loans secured by shares, supply chain financing, or patent cross-licensing agreements, as well as nascent FinTech arrangements, such as blockchain-based initial coin offerings and other dealings in digital tokens.

CLIs present a multi-faceted challenge. The unharmonious convergence of commercial law branches generates failures in coordination that both increase transaction costs and distort incentives for market participants. Crucially, in the most severe cases, this affliction deters business actors from entering into the affected transactions altogether. The cries of scholars, judges, and practitioners lamenting these issues have grown ever louder; yet methodical, comprehensive solutions remain elusive.

This Article endeavors to fill this void. First, it provides a comprehensive analysis of CLIs and the dynamics that give rise to coordination failures. Drawing from systems theory and jurisprudence, it then identifies the deficiencies of the most common approaches used to reconcile tensions between commercial law branches, before advancing the concepts of “legal coherence” and “unity of purpose” as the key to addressing such shortcomings. Finally, leveraging these insights, it formulates a normative blueprint, comprising a two-step method which aims to assist lawmakers, regulators, and courts in untangling the Gordian knot created by CLI coordination failures.

Keywords: commercial law, financial regulation, secured transactions law, commercial law intersection, legal theory, corporate law, intellectual property law, business law, UCC

JEL Classification: K10, K12, K19, K20, K21, K22, K29, K39, G21, G28, G38

Suggested Citation

Castellano, Giuliano and Tosato, Andrea, Commercial Law Intersections (April 28, 2021). Hastings Law Journal, Vol. 72, 2021, U of Penn, Inst for Law & Econ Research Paper No. 20-31, University of Hong Kong Faculty of Law Research Paper No. 2020/018 , Available at SSRN: https://ssrn.com/abstract=3558378

Giuliano Castellano (Contact Author)

The University of Hong Kong, Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

Andrea Tosato

University of Nottingham, School of Law ( email )

Law and Social Science Building
University Park
Nottingham, NG7 1BB
United Kingdom

University of Pennsylvania Law School ( email )

Philadelphia, PA
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
757
Abstract Views
1,918
rank
41,477
PlumX Metrics