Reflexive Transnational Law: The Privatisation of Civil Law and the Civilisation of Private Law

Zeitschrift für Rechtssoziologie, Vol. 23, pp. 185-216, 2002

26 Pages Posted: 7 Nov 2006 Last revised: 28 Jun 2010

Date Written: June 28, 2010

Abstract

The author examines the emergence of a transnational private law in alternative dispute resolution bodies and private norm formulating agencies from a reflexive law perspective. After introducing the concept of reflexive law he applies the idea of law as a communicative system to the ongoing debate on the existence of a New Law Merchant or lex mercatoria. He then discusses some features of international commercial arbitration (e.g. the lack of transparency) which hinder self-reference (autopoiesis) and thus the production of legal certainty in lex mercatoria as an autonomous legal system. He then contrasts these findings with the Domain Name Dispute Resolution System, which as opposed to Lex Mercatoria was rationally planned and highly formally organised by WIPO and ICANN, and which is allowing for self-reference and thus is designed as an autopoietic legal system, albeit with a very limited scope, i.e. the interference of abusive domain name registrations with trademarks (cybersquatting). From the comparison of both examples the author derives some preliminary ideas regarding a theory of reflexive transnational law, suggesting that the established general trend of privatisation of civil law need to be accompanied by a civilisation of private law, i.e. the constitutionalization of transnational private regimes by embedding them into a procedural constitution of freedom.

Keywords: Reflexive Law, Transnational Law, Lex Mercatoria, ICANN UDRP

Suggested Citation

Calliess, Gralf-Peter, Reflexive Transnational Law: The Privatisation of Civil Law and the Civilisation of Private Law (June 28, 2010). Zeitschrift für Rechtssoziologie, Vol. 23, pp. 185-216, 2002. Available at SSRN: https://ssrn.com/abstract=531063

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/

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