Rough Consensus and Running Code: A Theory of Transnational Private Law

by Gralf-Peter Calliess, Craig Martin Scott, Peer Zumbansen

Overview

Private law has long been the focus of efforts to explain wider developments of law in an era of globalisation. As consumer transactions and corporate activities continue to develop with scant regard to legal and national boundaries, private law theorists have begun to sketch and conceptualise the possible architecture of a transnational legal theory. Drawing a detailed map of the mixed regulatory landscape of 'hard' and 'soft' laws, official, unofficial, direct and indirect modes of regulation, rules, recommendations and principles as well as exploring the concept of governance through disclosure and transparency, this book develops a theoretical framework of transnational legal regulation.

Rough Consensus and Running Code describes and analyses different law-making regimes currently observable in the transnational arena. Its core aim is to reassess the transnational regulation of consumer contracts and corporate governance in light of a dramatic proliferation of rule-creators and compliance mechanisms that can no longer be clearly associated with either the 'state' or the 'market'. The chosen examples from two of the most dynamic legal fields in the transnational arena today serve as backdrops for a comprehensive legal theoretical inquiry into the changing institutional and normative landscape of legal norm-creation.

Product Details

ISBN-13:	9781849463546
Publisher:	Bloomsbury Academic
Publication date:	07/01/2012
Series:	Hart Monographs in Transnational and International Law , #5
Edition description:	Reprint
Pages:	382
Product dimensions:	6.14(w) x 9.21(h) x 0.80(d)

About the Author

Gralf-Peter Calliess (LLB, PhD Göttingen, Habilitation Frankfurt) holds the Chair in Private Law, Comparative and International Economic Law, University of Bremen Faculty of Law. Professor Calliess is Director of the A4 Project ('New Forms of Legal Certainty in Globalized Exchange Processes') at the Collaborative Research Centre 'Transformations of the State'.

Peer Zumbansen (Lic dr Paris; LLB., PhD law, Habilitation Frankfurt/Main; LLM Harvard, ) holds the Canada Research Chair in Transnational Economic Governance and Legal Theory at Osgoode Hall Law School of York University, Toronto. Professor Zumbansen is the founder and director of the Critical Research Laboratory in Law & Society (www.criticalresearchlab.org) and co-founder/editor-in-chief of the German Law Journal (with Russell Miller, www.germanlawjournal.com).

Table of Contents

Foreword vii

Preface to the Paperback Edition ix

Preface xv

Introduction 1

1 Law's Elusive Boundaries 11

I Border Crossings 11

II Towards a Legal Critique of Transnational Governance Institutions 17

III Law's Elusive Empire? 19

2 Towards A Theory of Transnational Private Law 27

I Seeing the (Global) World Through a Private Lawyer's Eyes 27

A Crucial Intersections: Lex mercatoria and Legal Pluralism 28

B Communities of Interest and Private Governance Regimes: The Conundrum of Transnational Commercial Law 35

C Markets as Regulators: It's the Economy, Stupid-Or, is It? 59

D Law and the Transformation of State Regulatory Functions 64

II Ubiquitous Law 67

A Normativity versus Realism: Law versus Power 67

B The Transnational: A Realm of Borderless Self-Regulation? 76

C Private Ordering and Public Authority: Scrutinising Democratic versus Economic Functions of Law 80

III A Theory of Transnational Private Law 96

A Co-ordination versus Regulation: Revisiting the Public-Private Divide 96

B The Hybrid Character of Transnational Law Regimes 109

C The Governance Mode of Transnational Law Regimes 112

(i) Mapping Economic Governance 113

(ii) The Recombinant Governance Mode of Transnational Commercial Law 119

D Soft Law, Hard Law, and Legitimacy 123

E Rough Consensus and Running Code 134

(i) Internet Governance: Legitimising Open Technical Standards 135

(ii) Private Law Harmonisation 139

(iii) Modern Customary Law 143

(iv) The Making of Transnational Private Law 145

3 Transnational Consumer Contracts 153

I Private Ordering in B2C E-Commerce 153

A Online Reputation 154

B Trustmarks and Codes of Conduct 155

C Online Dispute Resolution 157

D Method of Payment and Credit Security 160

II Transnational Law Regimes: the Role of Virtual Marketplaces 163

III Reflexive Consumer Protection Law 166

A Reflexive Trustmarks: Contractual Standards of Hybrid Organisations 169

(i) Secondary Trustmarks at the National Level 169

(ii) Supranational Standardisation via Co-Regulation? 170

(iii) Global Linkage 173

B Law-Consumer Protection: ODR Standards and their Implementation 174

(i) Guidelines for providers of ODR Procedures 175

(ii) The Implementation of Global ODR Standards 176

IV RCRC in the Making of Transnational Consumer Contract Law 179

4 Transnational Corporate Governance 181

I Corporate Governance Codes 181

A Corporate Governance 187

B Corporate Governance and Political Economy 189

C Law-Making in Corporate Governance 194

(i) The German Corporate Governance Code as an Example of RCRC 196

(ii) Who Makes Company Law? 200

(iii) Corporate Law Making Between State and Society 207

(iv) The Reform of German Corporate Governance: The Intricacies of Rough Consensus and Running Code 208

II Transnational Corporate Governance and Executive Compensation 212

A The Transnational Embeddedness of European Corporate Governance Regulation 213

B 'New' and 'Experimentalist Governance' in European Corporate Law Regulation: RCRC as Transnational Legal Pluralism 219

(i) The Polarities of EU Governance: Global Competitiveness and Political-Economic Integration 220

(ii) Reflexive Corporate Governance 223

(iii) European Corporate Governance Regulation and RCRC 225

C The Case of Executive Compensation 227

(i) Breaking the Political Deadlock: Governance by Expertise 230

(ii) Executive Compensation: Governance by Transparency 232

D 'Germany Inc' and Executive Compensation 234

(i) The Political Economy of Corporate Governance Reform in Germany 236

(a) Governing 'Germany Inc' 236

(b) Hybridisation of Law-Making: The Return of the State? 240

(ii) Transnational Corporate Governance as Spatio-Temporal Assemblage 242

E Transnational Corporate Governance Regulation as RCRC 246

5 Rough Consensus and Running Code in Context 248

I Law and Social Norms 248

II Soft Law 255

A Asking the Right Questions? 255

B Soft Law as Embarrassment 258

III Customary International Law (And Its Limits) 261

A Elements of Customary International Law 262

B Ships Passing in the Night? 265

C The Attack on Customary International Law 266

D Customary International Law in the Making of Global Law 270

IV Transnational Private Law: Hard Law, Soft Law, Reflexive Law and the Conditions for Private Law-Making 274

Bibliography 278

Index 347

Editorial Reviews

"...a sophisticated and thoughtful effort to renew and update our understanding of law to accommodate the challenging realities of globalise regulatory processes." --The Modern Law Review, Volume 75, Issue 3

"...one of the most striking feature of this work is its engagement with an impressive body of literature, from legal theory to sociology, economics and social sciences in general, in an attempt to embed the project in the broader debate of law in the global space. The result is an original, rich and highly complex book, which undoubtedly will, and in fact already is, stimulating debates and discussions over the nature and making of transnational law.
... a must read for whomever wrestles in (or whomever seeks to enter) the rough arena of transnational law!" --European Journal of Legal Studies, Volume 4, Issue 1

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