Commercial Law Intersections

57 Pages Posted: 23 Apr 2020 Last revised: 28 Apr 2020

See all articles by Giuliano Castellano

Giuliano 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 23, 2020

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 these events 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). Some notable examples of transactions that feature CLIs include bank loans secured by shares, supply chain financing arrangements, patent cross-licensing, and blockchain-based initial coin offerings.

CLIs present a complex and multi-faceted challenge. The convergence of commercial law branches is frequently beset with failures in coordination that both distort incentives for market participants and increase transaction costs. 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 their coordination failures. Drawing from systems theory and jurisprudence, it then identifies the deficiencies of the most common interpretative approaches used to reconcile tensions between commercial law branches, before advancing the concepts of “coherence” and “unity of purpose” as the key to addressing such shortcomings. Finally, it formulates a two-step interpretive method that unties 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 23, 2020). 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

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