Chapter 9: Demandeur-centricity in Transnational Commercial Law
Sandeep Gopalan1 Theoretical explanations for the structuring of transnational commercial law agreements are limited by their focus on the state. Given the dispositive nature of transnational commercial law, this chapter contends that the key actors are private demandeurs, and that agreements are reflective of their preferences and relative power. I have explained the limitations of the state-centric approach in other works,2 and do not elaborate on those arguments here. This chapter will limit itself to outlining the central claims of the demandeur-centric approach for the process of creating transnational commercial law. It demonstrates that agreement design is predicated on two variables – bargaining costs and enforcement costs. The operation of these variables spawns agreements ranging from non-convention agreements, which result when demandeurs possess the ability to strike agreements at low cost and are able to enforce them without much reliance on state actors, to conventions, which result when bargaining and enforcement costs are high. Theories about the design of transnational commercial law agreements have extensively applied the contract lens, assuming that states mimic private contracting parties and seek to enhance the credibility and enforceability of their agreements.3 The central players are rational states which act to maximize contractual surplus.4 Putting mutual promises in contract form makes them binding 1 Professor and Head of Department of Law, National University of Ireland, Maynooth. 2 See Gopalan, S (2008), ‘A Demandeur-Centric Approach to Regime Design in Transnational Commercial Law’, 39 Georgia Journal of International Law 327, upon which some of the points of...
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