Abstract:
Law reformers like the World Bank sometimes suggest that optimal legal rules and institutions can be recognized and then be recommended for law reform in every country in the world. Comparative lawyers have long been skeptical of such views. They point out that both laws and social problems are context-specific. What works in one context may fail in another. Instead of “one size fits all,” they suggest tailor made solutions.
I challenge this view. Drawing on a comparison with IKEA’s global marketing strategy, I suggest that “one size fits all” can sometimes be not only a successful law reform strategy, but also not as objectionable as critics make it to be. First, whereas, “one size fits all” is deficient a functionalist position, it proves to be surprisingly successful as a formalist conception. Second, critics of legal transplants often insists on what can be called “best law” approach, whereas in law reform, what we sometimes need is law that is just” good enough” law. “Third, legal transplants no longer happen in isolation but rather on a global scale, so that context-specific rules are no longer necessarily local.
This is not a plea for formal law, for commodification of laws, and for “one size fits all”. But it is a plea to overcome the romanticism and elitism that may lurk behind the seemingly benign suggestion that law reform must always be tailored to the specific societal context.
Michaels, Ralf, 'One Size Can Fit All' – On the Mass Production of Legal Transplants (December 19, 2012). ORDER FROM TRANSFER—STUDIES IN COMPARATIVE (CONSTITUTIONAL) LAW, Günter Frankenberg ed., Elgar, 2013.
Purpose
Friday, December 21, 2012
Thursday, December 13, 2012
Call for Papers Irish Society of Comparative Law Annual Conference 2013
The School of Law at NUI Galway will host the Irish Society of Comparative Law 5th Annual Conference on Friday 24th and Saturday 25th of May 2013 in Galway. The theme for the Irish Society of Comparative Law’s Annual Conference 2013 is ‘Comparative Public Law’. Papers placing Irish public law in comparative perspective are especially encouraged, but any topic in comparative or legal systems may be proposed including private law topics. Proposals for thematic panels of papers are also welcomed.
The primary objective of the Irish Society of Comparative Law is to encourage the comparative study of law and legal systems. Students fully registered for a masters in law, or law-related area (LL.M, MA) are encouraged to submit papers, and the 2nd ISCL Young Researcher Prize will be awarded to the best paper delivered by a student in this category.
Proposals for papers for the 2013 conference should be short (250 words max) and sent to Charles O’Mahony at charles.omahony@nuigalway.ie. The deadline for receipt of proposals is Friday 15 February 2013. Applicants will be notified by Thursday 28th February 2013 if their paper proposal is successful. There will be an opportunity for poster presentations (Posters A1 size) to be displayed in the foyer of the conference venue, Aras Moyola. Poster presenters are expected to attend the conference in the normal way and to be available to discuss their work. You do not have to be a member of the ISCL to propose a paper or be selected to present a poster. Registration forms and additional information will be available early in 2013.
The Irish Society of Comparative Law was established in June 2008 and is recognised by the International Academy of Comparative Law. The ISCL is open to those interested in Irish and comparative law. Its purpose is to encourage the comparative study of law and legal systems and to seek affiliation with individuals and organisations with complementary aims. Queries regarding the ISCL should be directed to Niamh Connolly at niamh.connolly@tcd.ie.
The School of Law, NUI Galway has a long and distinguished tradition of teaching law and legal scholarship since 1849. The School of Law is comprised of full-time professors and lecturers who are academics producing research across a number of fields including human rights law, international and comparative disability law and policy, legal theory, criminal law, commercial law, maritime law and media law. Large national and international research projects, international conferences and guest lectures are organised under the auspices of the School of Law and its research centres, the Irish Centre for Human Rights and the Centre for Disability Law and Policy. The School of Law is home to a thriving Ph.D programme and offers a number of taught LL.M programmes including a dynamic LL.M in Public Law.
The primary objective of the Irish Society of Comparative Law is to encourage the comparative study of law and legal systems. Students fully registered for a masters in law, or law-related area (LL.M, MA) are encouraged to submit papers, and the 2nd ISCL Young Researcher Prize will be awarded to the best paper delivered by a student in this category.
Proposals for papers for the 2013 conference should be short (250 words max) and sent to Charles O’Mahony at charles.omahony@nuigalway.ie. The deadline for receipt of proposals is Friday 15 February 2013. Applicants will be notified by Thursday 28th February 2013 if their paper proposal is successful. There will be an opportunity for poster presentations (Posters A1 size) to be displayed in the foyer of the conference venue, Aras Moyola. Poster presenters are expected to attend the conference in the normal way and to be available to discuss their work. You do not have to be a member of the ISCL to propose a paper or be selected to present a poster. Registration forms and additional information will be available early in 2013.
The Irish Society of Comparative Law was established in June 2008 and is recognised by the International Academy of Comparative Law. The ISCL is open to those interested in Irish and comparative law. Its purpose is to encourage the comparative study of law and legal systems and to seek affiliation with individuals and organisations with complementary aims. Queries regarding the ISCL should be directed to Niamh Connolly at niamh.connolly@tcd.ie.
The School of Law, NUI Galway has a long and distinguished tradition of teaching law and legal scholarship since 1849. The School of Law is comprised of full-time professors and lecturers who are academics producing research across a number of fields including human rights law, international and comparative disability law and policy, legal theory, criminal law, commercial law, maritime law and media law. Large national and international research projects, international conferences and guest lectures are organised under the auspices of the School of Law and its research centres, the Irish Centre for Human Rights and the Centre for Disability Law and Policy. The School of Law is home to a thriving Ph.D programme and offers a number of taught LL.M programmes including a dynamic LL.M in Public Law.
Tuesday, November 27, 2012
The Transnationalisation of Commercial Law
Abstract:
Commerce always requires an institutional embedment. Basically, private Institutions as well as state institutions can provide the normative good of legal certainty understood as the enforceability of contractual commitments. While for domestic commerce, the balance between the importance of private and state institutions is almost equal, economic globalization leads to a decrease in the relative weight of public institutions and to a corresponding increase in the overall importance of private institutions for international commerce. This trend of internationalization and privatization of responsibility for the provision of legal certainty combine to what we call the transnationalisation of commercial law.
Drawing on five case studies, in this paper we try to explain why today private institutions are of greater importance for cross-border transactions than state or multinational institutions. One the one hand, the first two studies show that there is no real practical need for multinational institutions for cross-border commerce. First, the modern information and communication technology strengthen the effectiveness of reputation-based mechanisms — relational contracts and reputational networks — for the safeguarding of cross-border transactions. Second, vertical integration in general and intra-firm trade in particular offer effective alternatives to market exchange. One the other hand, some private institutions can offer more than safeguarding commercial transactions as they can guarantee to a certain extent a respect of fairness and public policy issues. In maritime law, the third case study, it can be shown that private actors can achieve a fair arrangement for all stakeholders by allowing them to participate in the process of norm-formation in a transparent process. The fourth study in international commercial arbitration shows that international arbitration courts respect national mandatory rules and produce new transnational mandatory rules. However, the transnationalisation of commercial law leads to the trend of the vanishing trial: National Courts register less commercial disputes which does not come without cost. The fifth case study explains possible reasons for the decreasing number of commercial cases in German courts.
Calliess, Gralf-Peter, Hoffmann, Hermann B. and Mertens, Jens, The Transnationalisation of Commercial Law (2012). ZenTra Working Paper in Transnational Studies No. 4/2012.
Commerce always requires an institutional embedment. Basically, private Institutions as well as state institutions can provide the normative good of legal certainty understood as the enforceability of contractual commitments. While for domestic commerce, the balance between the importance of private and state institutions is almost equal, economic globalization leads to a decrease in the relative weight of public institutions and to a corresponding increase in the overall importance of private institutions for international commerce. This trend of internationalization and privatization of responsibility for the provision of legal certainty combine to what we call the transnationalisation of commercial law.
Drawing on five case studies, in this paper we try to explain why today private institutions are of greater importance for cross-border transactions than state or multinational institutions. One the one hand, the first two studies show that there is no real practical need for multinational institutions for cross-border commerce. First, the modern information and communication technology strengthen the effectiveness of reputation-based mechanisms — relational contracts and reputational networks — for the safeguarding of cross-border transactions. Second, vertical integration in general and intra-firm trade in particular offer effective alternatives to market exchange. One the other hand, some private institutions can offer more than safeguarding commercial transactions as they can guarantee to a certain extent a respect of fairness and public policy issues. In maritime law, the third case study, it can be shown that private actors can achieve a fair arrangement for all stakeholders by allowing them to participate in the process of norm-formation in a transparent process. The fourth study in international commercial arbitration shows that international arbitration courts respect national mandatory rules and produce new transnational mandatory rules. However, the transnationalisation of commercial law leads to the trend of the vanishing trial: National Courts register less commercial disputes which does not come without cost. The fifth case study explains possible reasons for the decreasing number of commercial cases in German courts.
Calliess, Gralf-Peter, Hoffmann, Hermann B. and Mertens, Jens, The Transnationalisation of Commercial Law (2012). ZenTra Working Paper in Transnational Studies No. 4/2012.
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