Rough Consensus and Running Code
A Theory of Transnational Private Law
1st Edition
Published on 31. May 2010
382 pages
978-1-84731-582-3 (ISBN)
Description
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.
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.
More details
Series
Edition
1. Auflage
Language
English
Place of publication
London
United Kingdom
Publishing group
Bloomsbury Publishing PLC
Target group
Professional and scholarly
ISBN-13
978-1-84731-582-3 (9781847315823)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Classification
Other editions
Additional editions
Gralf-Peter Calliess | Peer Zumbansen
Rough Consensus and Running Code
A Theory of Transnational Private Law
Book
07/2012
1st Edition
Hart Publishing
€56.50
Shipment within 15-20 days
Persons
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).
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).
Content
Introduction
1. Law's Elusive Boundaries
I. Border Crossings
II. Towards a Legal Critique of Transnational Governance Institutions
III. Law's Elusive Empire?
2. Towards A Theory of Transnational Private Law
I. Seeing the (Global) World Through a Private Lawyer's Eyes
A. Crucial Intersections: Lex mercatoria and Legal Pluralism
B. Communities of Interest and Private Governance Regimes: The Conundrum of Transnational Commercial Law
C. Markets as Regulators: It's the Economy, Stupid-Or, is It?
D. Law and the Transformation of State Regulatory Functions
II. Ubiquitous Law
A. Normativity versus Realism: Law versus Power
B. The Transnational: A Realm of Borderless Self-Regulation?
C. Private Ordering and Public Authority: Scrutinising Democratic versus Economic Functions of Law
III. A Theory of Transnational Private Law
A. Co-ordination versus Regulation: Revisiting the Public-Private Divide
B. The Hybrid Character of Transnational Law Regimes
C. The Governance Mode of Transnational Law Regimes
(i) Mapping Economic Governance
(ii) The Recombinant Governance Mode of Transnational Commercial Law
D. Soft Law, Hard Law, and Legitimacy
E. Rough Consensus and Running Code
(i) Internet Governance: Legitimising Open Technical Standards
(ii) Private Law Harmonisation
(iii) Modern Customary Law
(iv) The Making of Transnational Private Law
3. Transnational Consumer Contracts
I. Private Ordering in B2C E-Commerce
A. Online Reputation
B. Trustmarks and Codes of Conduct
C. Online Dispute Resolution
D. Method of Payment and Credit Security
II. Transnational Law Regimes: the Role of Virtual Marketplaces
III. Reflexive Consumer Protection Law
A. Reflexive Trustmarks: Contractual Standards of Hybrid Organisations
(i) Secondary Trustmarks at the National Level
(ii) Supranational Standardisation via Co-Regulation?
(iii) Global Linkage
B. Law-Consumer Protection: ODR Standards and their Implementation
(i) Guidelines for providers of ODR procedures
(ii) The Implementation of Global ODR Standards
IV. RCRC in the Making of Transnational Consumer Contract Law
4. Transnational Corporate Governance
I. Corporate Governance Codes
A. Corporate Governance
B. Corporate Governance and Political Economy
C. Law-Making in Corporate Governance
(i) The German Corporate Governance Code as an Example of RCRC
(ii) Who Makes Company Law?
(iii) Corporate Law Making Between State and Society
(iv) The Reform of German Corporate Governance: The Intricacies of Rough Consensus and Running Code
II. Transnational Corporate Governance and Executive Compensation
A. The Transnational Embeddedness of European Corporate Governance Regulation
B. 'New' and 'Experimentalist Governance' in European Corporate Law Regulation: RCRC as Transnational Legal Pluralism
(i) The Polarities of EU Governance: Global Competitiveness and Political-Economic Integration
(ii) Reflexive Corporate Governance
(iii) European Corporate Governance Regulation and RCRC
C. The Case of Executive Compensation
(i) Breaking the Political Deadlock: Governance by Expertise
(ii) Executive Compensation: Governance by Transparency
D. 'Germany Inc' and Executive Compensation
(i) The Political Economy of Corporate Governance Reform in Germany
(a) Governing 'Germany Inc'
(b) Hybridisation of Law-Making: The Return of the State?
(ii) Transnational Corporate Governance as Spatio-Temporal Assemblage
E. Transnational Corporate Governance Regulation as RCRC
5. Rough Consensus and Running Code in Context
I. Law and Social Norms
II. Soft Law
A. Asking the Right Questions?
B. Soft Law as Embarrassment
III. Customary International Law (And Its Limits)
A. Elements of Customary International Law
B. Ships Passing in the Night?
C. The Attack on Customary International Law
D. Customary International Law in the Making of Global Law
IV. Transnational Private Law: Hard Law, Soft Law, Reflexive Law and the Conditions for Private Law-Making
1. Law's Elusive Boundaries
I. Border Crossings
II. Towards a Legal Critique of Transnational Governance Institutions
III. Law's Elusive Empire?
2. Towards A Theory of Transnational Private Law
I. Seeing the (Global) World Through a Private Lawyer's Eyes
A. Crucial Intersections: Lex mercatoria and Legal Pluralism
B. Communities of Interest and Private Governance Regimes: The Conundrum of Transnational Commercial Law
C. Markets as Regulators: It's the Economy, Stupid-Or, is It?
D. Law and the Transformation of State Regulatory Functions
II. Ubiquitous Law
A. Normativity versus Realism: Law versus Power
B. The Transnational: A Realm of Borderless Self-Regulation?
C. Private Ordering and Public Authority: Scrutinising Democratic versus Economic Functions of Law
III. A Theory of Transnational Private Law
A. Co-ordination versus Regulation: Revisiting the Public-Private Divide
B. The Hybrid Character of Transnational Law Regimes
C. The Governance Mode of Transnational Law Regimes
(i) Mapping Economic Governance
(ii) The Recombinant Governance Mode of Transnational Commercial Law
D. Soft Law, Hard Law, and Legitimacy
E. Rough Consensus and Running Code
(i) Internet Governance: Legitimising Open Technical Standards
(ii) Private Law Harmonisation
(iii) Modern Customary Law
(iv) The Making of Transnational Private Law
3. Transnational Consumer Contracts
I. Private Ordering in B2C E-Commerce
A. Online Reputation
B. Trustmarks and Codes of Conduct
C. Online Dispute Resolution
D. Method of Payment and Credit Security
II. Transnational Law Regimes: the Role of Virtual Marketplaces
III. Reflexive Consumer Protection Law
A. Reflexive Trustmarks: Contractual Standards of Hybrid Organisations
(i) Secondary Trustmarks at the National Level
(ii) Supranational Standardisation via Co-Regulation?
(iii) Global Linkage
B. Law-Consumer Protection: ODR Standards and their Implementation
(i) Guidelines for providers of ODR procedures
(ii) The Implementation of Global ODR Standards
IV. RCRC in the Making of Transnational Consumer Contract Law
4. Transnational Corporate Governance
I. Corporate Governance Codes
A. Corporate Governance
B. Corporate Governance and Political Economy
C. Law-Making in Corporate Governance
(i) The German Corporate Governance Code as an Example of RCRC
(ii) Who Makes Company Law?
(iii) Corporate Law Making Between State and Society
(iv) The Reform of German Corporate Governance: The Intricacies of Rough Consensus and Running Code
II. Transnational Corporate Governance and Executive Compensation
A. The Transnational Embeddedness of European Corporate Governance Regulation
B. 'New' and 'Experimentalist Governance' in European Corporate Law Regulation: RCRC as Transnational Legal Pluralism
(i) The Polarities of EU Governance: Global Competitiveness and Political-Economic Integration
(ii) Reflexive Corporate Governance
(iii) European Corporate Governance Regulation and RCRC
C. The Case of Executive Compensation
(i) Breaking the Political Deadlock: Governance by Expertise
(ii) Executive Compensation: Governance by Transparency
D. 'Germany Inc' and Executive Compensation
(i) The Political Economy of Corporate Governance Reform in Germany
(a) Governing 'Germany Inc'
(b) Hybridisation of Law-Making: The Return of the State?
(ii) Transnational Corporate Governance as Spatio-Temporal Assemblage
E. Transnational Corporate Governance Regulation as RCRC
5. Rough Consensus and Running Code in Context
I. Law and Social Norms
II. Soft Law
A. Asking the Right Questions?
B. Soft Law as Embarrassment
III. Customary International Law (And Its Limits)
A. Elements of Customary International Law
B. Ships Passing in the Night?
C. The Attack on Customary International Law
D. Customary International Law in the Making of Global Law
IV. Transnational Private Law: Hard Law, Soft Law, Reflexive Law and the Conditions for Private Law-Making
