Institutional Change in Globalization: Transnational Commercial Law from an Evolutionary Economics Perspective

2008 ◽  
Vol 9 (4) ◽  
pp. 411-436 ◽  
Author(s):  
Wolfgang Kerber
Keyword(s):  
Evolutionary Economics ◽  
Legal Order ◽  
Market Failures ◽  
Private Governance ◽  
New Governance ◽  
Commercial Law ◽  
Freedom Of Contract ◽  
Cross Border ◽  
Private And Public ◽  
Lex Mercatoria

Markets need a complex set of institutions in order to work properly. Within a state, the national legal order with its legal rules, courts, and enforcement agencies have the task of fulfilling this role. Besides safeguarding property rights, the national legal order encompasses (1) the facilitating of market transactions by offering enabling (facilitative) law (as legal standard solutions) and helping private parties to enforce contracts within the domain of freedom of contract, and (2) the regulation of market transactions for solving or mitigating market failures problems and achieving other policy objectives. A comparable consistent legal system is missing on the international level for ensuring the working of global markets and the governance of cross-border transactions. However, the dynamic process of globalization has brought about the development of a number of new institutional solutions for solving these problems. The most prominent issue is the regulation of international markets (“global governance”). This article, however, will focus on the evolution of institutions for the enforcement of contracts for cross-border transactions between firms. Although there have always been institutional solutions for the governance of cross-border contracts (lex mercatoria), in recent years, a number of new governance solutions for the enforcement of cross-border transactions have emerged (“transnational commercial law”). The increasing use of choice of law, private governance instead of private law (provided by states), and private arbitration instead of public courts are the most important characteristics of this development. This also includes hybrids as new combinations between private and public solutions for the governance of cross-border contracts. Therefore, the process of globalization is accompanied and enabled by a complex process of institutional evolution.

Transnational Commercial Law—Developments and Controversies

2021 ◽  
pp. 436-468
Author(s):  
Shahla Ali
Keyword(s):  
Future Development ◽  
Legal Order ◽  
Soft Law ◽  
Nation State ◽  
Commercial Law ◽  
Cross Border ◽  
The Future ◽  
Governance Processes ◽  
Law Making

This chapter suggests that alongside a growing recognition that the traditional territorialist theory is limited in its ability to deal with intensifying cross-border dealings, a pluralistic converging of a multiplicity of legal orders (including domestic) to ensure the efficacy of cross-border commercial law is emerging. The future development of a transnational legal order will reflect the intensifying interactions between diverse norms, laws, actors, and institutions—mirroring not necessarily the end of the nation-state—but requiring a wider loyalty beyond the nation-state. To understand these dynamics, this chapter will explore developments in the field of transnational arbitration by examining the evolution of relevant substantive commercial law and procedure, key forces including global soft-law-making bodies, relevant actors including the nation-state, arbitrators, parties and institutions, and relevant norms and governance processes influencing the continued evolution of transnational arbitration.

scholarly journals Immigration Civil Service Investigator Authority in Implementing Investigation and Investigation as Law Enforcement Efforts on Immigration Criminal Actions

2019 ◽  
Vol 1 (2) ◽  
pp. 59-71
Author(s):  
Ridha Nikmatus Syahada ◽  
Muhammad Azzam Alfarizi
Keyword(s):  
Law Enforcement ◽  
Analytical Study ◽  
Human Mobility ◽  
Civil Servant ◽  
Legal Order ◽  
Immigration Law ◽  
Vital Function ◽  
Cross Border ◽  
International Human ◽  
National Police

Monitoring international human mobility through cross-border countries in terms of immigration has various implications for a country's survival. Immigration has a vital function in supervising and implementing the law on the traffic of foreign nationals and inhabitants of their own country in order to compensate for the threat that enters a country's territory. Immigration law enforcement is carried out both administratively and pro-judicially in its application. An Immigration Civil Servant Investigator (PPNS) is constituted in the Immigration Office to carry out its role and to deal with immigration offences that arise. This study is a descriptive analytical study of the flaws discovered with the juridical normative method employed by gathering and analyzing the literature sources gathered. Immigration Civil Servant Investigators are legally liable for their investigative acts in line with the applicable rules and regulations when conducting investigations, while official responsibilities are carried out hierarchically. Article 105 of Law Number 6 of 2011 establishes the presence of civil servant investigators, which certifies that immigration investigators are authorized to examine immigration offences committed in line with the terms of this Law. However, in its implementation, PPNS Immigration can collaborate with the National Police to carry out supervision, investigation, and investigation to optimize its supervisory and law enforcement tasks in order to help carry out both preventive and repressive law enforcement in order to build a conducive legal order

scholarly journals Food safety investments factors in the Italian meat sector: conceptual framework and empirical evidence

New Medit ◽  
2020 ◽  
Vol 19 (2) ◽  
Author(s):  
Gaetano Martino ◽  
Chiara Riganelli ◽  
Andrea Marchini ◽  
Bianca Polenzani
Keyword(s):  
Food Safety ◽  
Value Chain ◽  
Investment Decision ◽  
Investment Decisions ◽  
Decision Rights ◽  
Freedom Of Contract ◽  
Private And Public ◽  
Safety Investments ◽  
The One ◽  
Meat Sector

The paper investigates how food safety investment decisions are affected on the one hand by laws and on the other by firm’s economic and organizational drivers. The paper shares findings from an empirical study that considers investments in HACCP, Certification, and Traceability in the Italian meat sector. The main finding of the study is that the allocation of the decision rights to invest in food safety explains the patterns of investment decisions observed. The conclusion is that regulatory interventions are more effective if there is a private possibility to allocate investment decision rights with respect to the distribution of information between private and public agents and the degree of uncertainty. The study contributes to the analysis of the allocation of the decision rights in the organization of value chain. Under this innovative view, it empirically shows how regulation and freedom of contract act as drivers of food safety investments. The research is particularly interesting in its policy implication: information regarding the role of these collective bodies will become relevant in the near future in the context of expected changes in the EU’s agricultural policy.

The Inspection and Correction of “Reification” Criminal Law— A Case Analysis Based on Tobacco-Involved Crimes

2021 ◽  
Vol 7 (6) ◽  
pp. 5541-5553
Author(s):  
Chen Cheng
Keyword(s):  
Criminal Law ◽  
Case Analysis ◽  
Legal Order ◽  
Criminal Cases ◽  
Crime And Punishment ◽  
Security Governance ◽  
Business Operation ◽  
Cross Border ◽  
The Cross ◽  
The Way

Superficially, the control of trafficking of counterfeit cigarettes in the name of illegal business operation goes against the spirit of modest and restraint, as well as the doctrine, of the Criminal Law; substantially, however, it is the realistic portrayal of the cross-border governing of market misconduct with “reification” criminal law. In recent years, modern criminal law has opened the way to a transformation of functionalism upon the demand for security governance derived from risks to society. It has gone from being a passive night watchman to being a positive leader and pusher, highlighting the trend of “reification” of functionalism-oriented criminal law. The reification not only weakens the contractual value of crime and punishment but also causes dysfunction of the integral legal order. In this regard, while affirming the legitimacy of the functionalism transformation of criminal law, this paper corrects the trend of "reification" of functionalism-oriented criminal law by declaring the modest value of classical humanity-oriented criminal law, and promotes its return to the modest value of "humanity-oriented" criminal law. Based on the principle of unity of legal order, this paper proposes to build a two-tier judgment model consisting of "general violation" and "punishable violation" in an attempt to provide intellectual support for the processing of criminal cases involving tobacco.

The legal phenomenon of lex sportiva in the international sports law

2020 ◽  
Vol 10 (4) ◽  
pp. 168-183
Author(s):  
Artem Bredikhin
Keyword(s):  
Self Regulation ◽  
Legal Regulation ◽  
The European Union ◽  
Sports Law ◽  
National Legislation ◽  
Sports Organizations ◽  
Cross Border ◽  
Lex Sportiva ◽  
Lex Mercatoria ◽  
Special Rules

The development of sports law is directly related to the nature of sports, whose legal relations must have uniformity and stability, achieved through regulation by special rules created by international and national sports organizations – lex sportiva. This paper is devoted to lex sportiva as one of the most important tools for regulating cross-border relations in the field of sports. The author examines the origin and legal nature of lex sportiva as well as its impact on national legislation in the field of sports. Moreover, the author elaborates on possible meanings of this notion: lex sportiva as a set of rules of self-regulation, as a set of decisions of the Court of Arbitration for Sport, as a legal principle, as a phenomenon of implementation, and as a criterion for determining the amount of compensation. The author discusses the use of lex sportiva by the Court of Arbitration for Sport in the context of dispute resolution, since this court has formed an extensive judicial practice throughout its existence, which, together with the rules of national and international sports organizations, forms an important part of lex sportiva. In this regard, the author draws parallels with the related source of cross-border law – lex mercatoria, and also considers situations in which there are conflicts between lex sportiva and the norms of international law and rules of national legislation. In the field of sports, such legal conflicts are resolved by the principle of lex specialis derogat legi generali, according to which the rules of lex sportiva prevail over national law, providing a principle for the autonomy of sports. The first mention of the recognition of this principle is contained in the sources of law of the European Union. Finally, the author comes to the conclusion that the generally recognized two-dimensional understanding of lex sportiva as a doctrine and as a set of norms of self-regulation in sports is outdated, since it does not fully reveal the essence of the legal phenomenon, since it does not reflect all its properties which are manifested in the situations of legal regulation of relationships in the sports field. The exclusive role of lex sportiva is predicted to resolve international legal and organizational conflicts in the field of sports caused by the COVID-19 pandemic.

Corruption, money laundering and Nigeria’s crisis of development

2019 ◽  
Vol 26 (4) ◽  
pp. 1133-1145
Author(s):  
Adebisi Arewa
Keyword(s):  
Rule Of Law ◽  
Secondary Data ◽  
Market Failures ◽  
Logical Function ◽  
Content Type ◽  
Weak Institutions ◽  
Private And Public ◽  
Public Sectors ◽  
Law Reports ◽  
Systemic Corruption

Purpose The purpose of this paper is to demonstrate the congruence between Nigeria’s unremitting rule of law deficit, corruption pandemic and its crisis of developmentalism. The paper proves that market failures and state failures are mutually reinforcing and are functions of systemic official corruption in the private and public sectors of the Nigerian economy. Design/methodology/approach This study is library-based. It relies on secondary data generated by the variegated multilateral agencies, law reports of international and municipal tribunals, relevant books, journals, monographs policy papers and so forth as the basis of analysis. Findings Findings suggest that Nigeria’s corruption pandemic is a derivative of its unremitting rule of law deficit and that its crisis of developmentalism is a logical function of the pervasive normlessness, very wide latitude for discretion, arbitrariness, weak institutions and lack of centrality of law and its institutions, which characterise its body politik. Social implications Systemic corruption in Nigeria affects the citizens’ perception of social justice and equity and undermines economic efficiency. It has also distorted the work reward causality, which has engendered a rentier social-economic order. Originality/value By first demonstrating the congruence between Nigeria’s rule of law deficit, corruption and economic and governance failure; the paper focusses on the total breakdown of norms in the Nigerian private and public sectors and resultant stultification of economic growth, sustainable human development and pervasive impoverishment of the citizenry.

Part I General Principles, 1 The Nature, History, and Sources of Commercial Law

2015 ◽  
Keyword(s):  
Contract Law ◽  
International Organisations ◽  
Commercial Law ◽  
European Contract ◽  
History Of ◽  
Standard Term ◽  
Lex Mercatoria ◽  
International Chamber Of Commerce ◽  
European Contract Law

Chapter 1 examines the nature of commercial law and transnational commercial law, identifies the forces driving the development of commercial law and gives a brief history of commercial law from the early codes to the present day. After identifying the sources of national commercial law, it goes on to examine the nature and sources of transnational commercial law, with a particular focus on international trade usage and the lex mercatoria and discusses complex issues relating to the binding nature of usage. Also discussed are the major types of international instrument — conventions, model laws, contractually incorporated rules and trade terms promulgated by international organisations such as the International Chamber of Commerce, standard-term contracts, and scholarly restatements such as the UNIDROIT Principles of International Commercial Contracts and the Commission on European Contract Law Principles of European Contract Law.

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