A Plural Account of the Transnational Law Merchant

Abstract:
The Law Merchant is depicted today as a transnational system based on merchant practice operating outside the fabric of national law. It is conceived as cosmopolitan in nature, universal in application, expertly delivered, and independent of other regulatory systems. This article critiques these qualities attributed to the historical as well as present-day Law Merchant. It disputes that it has evolved ‘spontaneously’ out of merchant practice; that it is uniform in nature; and that it transcends national law. It argues instead that the Law Merchant is often fragmentary in nature and subject to disparate national and transnational influences. It challenges, in particular, unitary conceptions of ‘autonomy’ ascribed to the Law Merchant, presenting a pluralistic conception of Law Merchant ‘autonomy’ instead. It illustrates these arguments in relation to the so-called Cyberspace Law Merchant and to transnational commercial arbitration.

Trakman, Leon, A Plural Account of the Transnational Law Merchant (May 14, 2012). (2011) 2(3) Transnational Legal Theory 309–345; UNSW Law Research Paper No. 2012-19.

Private Legal Transplants: Bright and dark nature of an unnoticed phenomenon

"Only a few months ago, the social image of prom­in­ent transna­tional enter­prises such as Apple and HP was threatened by media report­ing sev­eral viol­a­tions of labor rights by Fox­conn, the main con­tract man­u­fac­turer for elec­tron­ics com­pan­ies such as these, and which is loc­ated in the People’s Repub­lic of China ..." (more)

[Tomaso Ferando, Critical Legal Thinking, 28 May 2012]

Code vs. Code: Nationalist and Internationalist Images of the Code Civil in the French Resistance to a European Codification

Abstract:
French academics reacted to announcements about a possible future European civil code ten years ago in the way in which Americans reacted to the Japanese attack on Pearl Harbor 1940: first with shock, then with rearmament, finally with attempted counterattacks. Military metaphors abound. Yet the defense of the French Code Civil against a European civil code is tricky: they must defend one Code against another. The images drawn of codes are therefor of particular interest for our understanding both of civil codes and of legal nationalism. Often, two mutually exclusive images are presented at the same time. In cultural terms, the code civil is both traditional and revolutionary, both linguistically determined and independent of its language, both an expression of values and merely formal and neutral. Politically, the code civil is legitimated both in democracy and technocracy, it expresses both self-determination and imperialism, it is about both pluralism and universalism. Necessarily, in such juxtapositions, the same characteristics must be assigned to a European Code, making the arguments ultimately self-refuting. Nonetheless, the point is not to dismiss these defenses. Rather, they should be understood as expressions of faith — and the discussion over a European Code resembles, in part, a religious war.

Michaels, Ralf, Code vs. Code: Nationalist and Internationalist Images of the Code Civil in the French Resistance to a European Codification (May 22, 2012). European Review of Contract Law, Vol. 8, Forthcoming 2012.