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.
