Chapter 16: Transnational Governance and Evolutionary Theory
Gralf-Peter Calliess, Jörg Freiling and Moritz Renner 1. CROSS-BORDER COMMERCE AND TRANSNATIONAL INSTITUTIONS In spite of all efforts to harmonize private law and to facilitate judicial cooperation,1 the nation-state and its legal system still appear largely unable to effectively regulate global commerce. Depending on the specifics of the involved jurisdictions, cross-border transactions face varying degrees of uncertainty. In sum, international trade operates under circumstances which are appropriately described by the eye-catching term of ‘lawlessness’.2 At the same time, a host of private governance mechanisms is available to international commerce. Such private legal services might be bundled into effective private governance regimes or private legal systems, stepping in the place of national regulatory structures.3 Empirical research, conducted as part of an interdisciplinary research project in Bremen,4 has revealed an increasing transnationalization as a basic pattern in the governance of cross-border transactions.5 Triggered by the globalization of commerce, economic governance, understood as the provision of ‘good order and workable arrangements’6 for business purposes, is at the same time internationalized and privatized. In international trade, private governance mechanisms thus provide for what used to be thought of as a genuinely sovereign affair: legal certainty. In this regard, our studies on off-shoring in the software industry,7 the international timber trade,8 and the role of international law firms,9 have shown that economic agents in cross-border settings increasingly tend to rely on transaction-type or industry-specific governance regimes, recombined from different public and private mechanisms of control, when it comes to...
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