Reflexive Transnational Law

2002 ◽  
Vol 23 (2) ◽  
Author(s):  
Graff-Peter Calliess
Keyword(s):  
Dispute Resolution ◽  
Legal System ◽  
Private Law ◽  
Domain Name ◽  
Commercial Arbitration ◽  
Transnational Law ◽  
Resolution System ◽  
Law Merchant ◽  
Lex Mercatoria ◽  
Self Reference

SummaryThe author examines the emergence of a transnational private law in alternative dispute resolution bodies and private norm formulating agencies from a reflexive law perspective. After introducing the concept of reflexive law he applies the idea of law as a communicative system to the ongoing debate on the existence of a New Law Merchant or lex mercatoria. He then discusses some features of international commercial arbitration (e.g. the lack of transparency) which hinder self-reference (autopoiesis) and thus the production of legal certainty in lex mercatoria as an autonomous legal system. He then contrasts these findings with the Domain Name Dispute Resolution System, which as opposed to Lex Mercatoria was rationally planned and highly formally organised by WIPO and ICANN, and which is allowing for self-reference and thus is designed as an autopoietic legal system, albeit with a very limited scope, i.e. the interference of abusive domain name registrations with trademarks (cybersquatting). From the comparison of both examples the author derives some preliminary ideas regarding a theory of reflexive transnational law, suggesting that the established general trend of privatisation of civil law need to be accompanied by a civilisation of private law, i.e. the constitutionalization of transnational private regimes by embedding them into a procedural constitution of freedom.

scholarly journals Domain Name and Its Protection in India

2019 ◽  
Vol 8 (2S3) ◽  
pp. 1322-1324
Keyword(s):  
Dispute Resolution ◽  
Present Article ◽  
Homo Sapiens ◽  
Third Party ◽  
Domain Name ◽  
Internet Protocols ◽  
Identification Process ◽  
Domain Names ◽  
Resolution System ◽  
Dispute Resolution System

The present article deals with the concept of domain name, its protection and conflicts arising out of malafide registration of the same. Before proceeding further, it is important to give a brief on what domain names are. A domain name is an actual name given to an Internet Protocol and has every qualification of identification. Since Internet protocols are complex combination of alpha numeric values, the domain names makes the identification process of a network easy to remember. For example, remembering ‘humans’ is easier than ‘homo sapiens’ and convenient also. Similarly remembering ‘www.google.com’ is easier than ‘64.233.191.255’ . In later part of the research registration of domain names have been discussed in detail. In case of use of such registered domain name by third party unauthorizedly will amount to offence. The researcher has further thrown light on conflicts arising out of such unauthorized use and the judicial pronouncements towards the same. At the end various findings and suggestions regarding better dispute resolution system has been discussed.

O Regulamento de Arbitragem Esportiva do CBMA

2019 ◽  
Vol 1 (1) ◽  
pp. 155-171
Keyword(s):  
Dispute Resolution ◽  
Sports Law ◽  
Commercial Arbitration ◽  
Resolution System ◽  
The World ◽  
Dispute Resolution System

In 2016, the Brazilian Football Confederation (CBF) instituted a new dispute resolution system for the Brazilian football market, upon the reform of its National Dispute Resolution Chamber (the so-called CNRD), with jurisdiction to settle disputes regarding a wide variety issues, from labor and commercial matters to disciplinary ones. Chosen to review the decisions of CNRD in appeal, the Centro Brasileiro de Mediação e Arbitragem (CBMA) – one of the most well-known and vanguardist arbitral institutions in Brazil, funcioning in commercial arbitration since 2002 – sought inspiration from the Swiss-based Court of Arbitration for Sport (CAS), which for more than three decades has been serving as the supreme body of the international “sports justice”, in order to draft its own Regulations on Sports-related Arbitration, the first of its kind in Brazil and one of the few in the world to deal exclusively with arbitration in matters related to sports law. In this context, this article will examine the origins of CAS and the main peculiarities of its code, explaining how its model was adapted to the reality and needs of the Brazilian market.

scholarly journals Lex Mercatoria: A Reflexive Law Guide To An Autonomous Legal System

2001 ◽  
Vol 2 (17) ◽  
Author(s):  
Gralf-Peter Calliess
Keyword(s):  
Legal System ◽  
Ongoing Debate ◽  
Promising Candidate ◽  
System Part ◽  
Law Merchant ◽  
Lex Mercatoria

In this presentation I shall start with a brief introduction into the concept of Reflexive Law (Part I), in order to examine what makes especially Reflexive Law a promising candidate for a fruitful contribution to the ongoing debate on the normative-legal or mere social-factual status of Lex Mercatoria (Part II), and finally coming up with the suggestion of some criteria or features, which we should draw special attention on in the process of the emergence of a New Law Merchant as an autonomous legal system (Part III).

The Ins and Outs of Transnational Private Regulatory Governance: Legitimacy, Accountability, Effectiveness and a New Concept of “Context”

2012 ◽  
Vol 13 (12) ◽  
pp. 1269-1281 ◽  
Author(s):  
Peer Zumbansen
Keyword(s):  
Self Regulation ◽  
Welfare States ◽  
Regulatory Governance ◽  
Transnational Law ◽  
Contractual Arrangements ◽  
Governance Challenges ◽  
The Status ◽  
Contractual Governance ◽  
Law Merchant ◽  
Lex Mercatoria

The continuing proliferation of transnational private regulatory governance challenges conceptions of legal authority, legitimacy and public regulation of economic activity. The pace at which these developments occur is set by a coalescence of multiple regime changes, predominantly in commercial law areas, but also in the field of internet governance, corporate law and labor law, where the rise to prominence of private actors has become a defining feature of the emerging transnational regulatory landscape. One of the most belabored fields, the transnational law merchant or, lex mercatoria, has gained the status of a poster child, as it represents a laboratory for the exploration of “private” contractual governance in a context, in which the assertion of public or private authority has itself become contentious. The ambiguity surrounding many forms of today's contractual governance in the transnational arena echoes that of the far-reaching transformation of public regulatory governance, which has been characteristic of Western welfare states over the last few decades. What is particularly remarkable, however, is the way in which the depictions of “private instruments” and “public interests” in the post-welfare state regulatory environment have given rise to a rise in importance of social norms, self-regulation and a general anti-state affect in the assessment of judicial enforcement or administration of contractual arrangements. A central challenge resulting from case studies such as the transnational law merchant is from which perspective we ought to adequately study and assess the justifications, which are being offered for a contractual governance model, which prioritizes and seeks to insulate “private” arrangements from their embeddedness in regulated market contexts, on both the national and transnational level.

scholarly journals Legal Nature of Clauses Determining Arbitration Centers Resolving Disputes under the UDRP

Lex Russica ◽  
2020 ◽  
Vol 73 (6) ◽  
pp. 44-60
Author(s):  
L. V. Terentyeva
Keyword(s):  
Dispute Resolution ◽  
Public Law ◽  
Federal Law ◽  
Domain Name ◽  
Commercial Arbitration ◽  
Short Period ◽  
Legal Nature ◽  
The Russian Federation ◽  
Legislative Amendments ◽  
Limited List

Recent legislative amendments regarding an arbitration agreement incorporated into the agreement of accession have contributed to the formation of the concept in the Russian doctrine giving additional argumentation in favor of qualifying clauses envisaging the consideration of domain disputes under the UDRP as arbitration agreements. Taking into account a number of procedural and legal consequences determined by both the fact of the conclusion of the arbitration agreement and the fact of the award, the author raises the question of the nature of clauses providing for the consideration of disputes under the UDRP procedure. The study of the main properties and characteristics of the clauses under consideration leads to the conclusion that the balance between public law and private law foundations defined in the doctrine inherent to the arbitral agreement, does not meet the nature of the dispute resolution clauses under the UDRP (the impossibility for the domain name holder to refuse from the clause; the absence of the derogatory effect of the clause, etc.). Accordingly, enforceability of this clause cannot be determined under the provisions of the Federal Law on Arbitrazh [Arbitration] of 2015 and the Law of the Russian Federation on International Commercial Arbitration of 1993, providing the conclusion of the arbitration agreement, which, for example, include the principle of effective interpretation of an arbitration agreement that does not exclude in a number of cases the competence of the arbitral tribunal in the absence of the agreement signed by the parties. In this regard, the author questions the argumentation in favor of unenforceability of the clause under consideration based on the named laws.The study of certain principles of dispute resolution proceedings under the UDRP (limited list of remedies; resolution of the dispute in the form of oral hearings only on the initiative of an administrative commission; the unduly short period of time provided for both response to the claim and going to a competent court; the disparity of the dispute resolution clause, etc.) allows the author to conclude that, in some cases, such a clause is burdensome for the owner of the domain name due to the violation of the principles of legality and independence in the establishment and formation of a specific administrative commission.

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