1) 15 January – Transnational LawPETER ZUMBANSEN – TRANSNAT IONAL LAW

Transnational law originated in Jessup’s (Yale professor, 1955) lecture he challenged the boundaries international public law and international private law.

For Jessup, ‘transnational’ includes all laws that regulate actions or events transcending national frontiers.

Both Public international law and private international law are included, and other rules that do not fit in one of these two categories.

On the other hand, lex mercatoria, corporate governance and human rights litigation have also successfully proven that they are transnational law.

Jessup says law is not either purely national or international law.

Lex mercatoria

Post-WW2, lawyers worked out a new form of the lex mercatoria revival of the notion of borderless, universal trade law of nations.

On-going debate between traditionalists (they embrace the emergence of a self-producing legal order among commercial actors, they think that a repolitization of the world will have to take place) and transnationalists (they want the state to continue to enforce the arbitral awards). Transnational breaks with the separation between domestic and international problems

Corporations

Corporations have become transterritorial. The law governing a multinational corporation must be through a multi-level and multi-

polar legal regime of hard of soft law. In regards of corporations, the transnational law makes a difference between hard law and

soft law. Hard law: it governs the corporation through company law, labour law, Soft law: corporate governance codes, voluntary codes of conduct, human rights codes The line between hard law and soft law is not always easy to draw! Caranta doesn’t think

that soft law is soft.

Public international law

In the eyes of the lawyers of the second half of the 20th century, transnational law is a real challenge to the state centred view on relationships between states.

Before, international relations were seen from a state-centred view. Non-state actors have become increasingly more important. Transnational law is not only a private law based transactions between states. It also involves non state actors and regulatory networks.

Elgar encyclopaedia of comparative law :

Transnational law tends to destroy the conception that states alone are relevant actors in border crossing activity. The 21th century is marked by strongly dynamics in international relations. For administrative lawyers, the role of the stations has been changing dramatically. A deconstruction of the state is taking place. Recently, administrative law has become very important in transnational law. There is a multitude of norm makers

Human rights litigations

Civil litigation seeking compensation for human rights abuses have occupied courts around the world in the last two decades of the 20th century.

In mostly all cases, they failed to overcome state immunity (states are immune from lawsuits in foreign states courts) or they were rejected because the courts were declared ill-suited to hear cases involving for away incidents.

But since then, the norms governing the human rights claims are increasingly of border-transgressing nature.

A US court dismissed the Apartheid class actions. This action has been brought by a large group of Apartheid victims against corporations for their collaboration with the South African regime during Apartheid. Same happened in German, Greece, Britain, Italy. Even if the case has been dismissed, the Courts have analysed it ! That shows they are addressing issues that go beyond their borders.

Transnational legal history and societal memory

Big bang of military and political revolution. Post apartheid South-Africa, East West German narratives of the Nazi past to post genocide Rwanda are good examples of how to go to the future will keeping the past in mind.

Transnational legal education

Students have become more mobile. Same for employment possibilities after graduation.

WHAT IS TRANSNAT IONAL LAW (ROGER COTTERRELL )

The scope of transnational regulation

Law is not limited to nations anymore but goes beyond their borders. EU citizens are now used to the fact that their law does not only come from their national

jurisdictions anymore, but has Europe-wide institutions as sources. Non-state bodies tend to have an increasing influence in the law making in different fields We can speak from new legal relations, which are neither municipal law nor international

law. Transnational law can refer to extensions of jurisdictions across nation-state

boundaries, or as regulation guaranteed neither by nation-state agencies, nor by international legal institutions or instruments such as treaties or conventions. It can also signals a space for regulation not yet (fully) existing but for which a need is felt in cross-border interactions.

Some would even like to say that transnational law includes all law which regulates actions or events that transcend national frontiers. It would therefore include both national and international law.

On the other hand, it is also said that it is conceptually distinct from national and international law as its primary sources and addressees are neither nation-state agencies nor international institution founded on treaties or conventions but private actors.

The value of models and maps

Lawyers often think that all law is the law of the nation-state and that international law is significant as law only as it is a projection of the sovereignty of nation-states. Transnational

law is an extension of national sovereign jurisdiction, or the creation of law by international agencies or through international instruments ultimately validated by the express or tacit authority of sovereign states.

What is to be made of “soft law1”? Some account has to be taken of it, if only as doctrine, perhaps on the way to becoming law and acquiring some legal authority. To invoke an idea of transnational law is to suggest that law has new sources, locations, and bases of authority

Transnational law in legal philosophy (fascinating)

Can the concept of law be made to embrace legal transnationalism; that is law no longer understood in its “central case” as being state law2?

Von Daniels then proceeds to a “systemic reconstruction” of Hart’s concept of law, which is “the union of primary and secondary rules”. Von Daniels considers that primary rules (obligation-imposing) alone could amount to law. Von Daniels claims that certain conditions have to be fulfilled so that primary rules can be recognized as law:

1. Always multilateral (relating to a group, not to an individual’s personal moral convictions

2. Decisive (unlike moral rules that can be surrounded by ambiguity)

3. “Justice apt” (concerned with “the right and proper thing to do”, “the done thing”, or what is “fair”).

For Hart, the union of primary and secondary rules is needed to institutionalize and develop law with elaborate agencies and practices (also in transnational context) but it is not essential for the existence of law.

Von Daniels adds a new category of rules, the linkage rules.

Law as institutionalized doctrine

For Hart, secondary rules mark the transition from a prelegal to a legal regime. Hart places the union of primary and secondary rules is at the center of law as an idea .

Private and public in transnational regulation3

One of their main themes is that public and private cannot realistically be separated. Soft law mechanisms may be attached to hard law, or introduced as a prelude to

the “hardening” of guidelines into state or international law (e.g.: Corporate governance manuals).

Law in the toolbox of governance mechanisms4

Calliess and Zumbansen (C&Z) identify twelve possible “generic governance mechanisms”, ranging from state law, courts, and legal sanctions through tripartite arbitration, etc. What will be optimal or possible depends on the nature of transactions and relations between those engaged in them.

1 « Regulatory instruments and mechanisms of governance that, while implicating some kind of normative

commitment, do not rely on binding rules or on a regime of formal sanctions ».

2 See Von Daniels, as quoted in the paper, if you want to learn more about these fundamental issues. He basically

adapted H.L.A. Hart’s Masterpiece The Concept of Law and named, remarkably, his own book The Concept of Law

from a Transnational Perspective (2010).

3 mostly based on Calliess & Zumbansen’s book Rough Consensus and Running Code : A theory of Transnational

Private Law (2010), which seems to be almost as remarkable as the previous one.

4 Olivier Williamson’s « economics of governance »

They base themselves on Niklas Luhmann’s systems theory5 and see law as reconstructing conflicts, alienating them form the social contexts in which they arise, and redefining them in terms of binary legal/illegal code.

The sole function of law is the stabilization of normative expectations. Transnational governance regimes that take on this function can develop into legal systems.

A “private legal system” would be one that could “bundle private governance mechanisms which fulfill legislative, adjudicative, and enforcement functions into an effective and operational regime Effective enforcement would probably be prohibited by state law. Other ways have been used / suggested such as “verbalization of conflicts”.

Rough Consensus and Running Code (RCRC): bottom-up regulation

There is a need to think about the law in new ways: emphasizing the creation of norms and their authority in “bottom-up” processes of negotiation and consensus formation.

The RCRC allows Internet enthusiast with varying degrees of technical experience to engage in collective deliberation and experimentation aimed at producing agreed technical standards for the operation of the Internet.

A business network may prioritize cooperation and consensus within its members but its orientation will be to its members’ profit, and it has no need to aim at openness and inclusiveness.

RCRC is “a mixed, public-private, dynamic norm-creation process” and “a particular form of societal self-governance” that complements municipal and international regulation,

Law and transnational networks of community

If transnational law relates to social relations extending across the borders of national societies, it may be better to see the social in a way that avoids these national connotations.

The social can be summarized as made up of networks of interpersonal relations which must have some minimum degree of stability. We can then speak of networks of community.

One might think of transnational networks of community as the ultimate source of their own legal regulation but, equally, as being subject to legal regulation created in other such networks that impinge on them.

Two aspects have to be taken into consideration:1. Relations of community are almost always unequal, structured by power, and the

regulation created in them will reflect this.

2. Where can their authority and legitimacy come from if they cannot appeal to the democratic foundations on which municipal law is usually assumed to rely?

In internet transactions there is a need to build confidence in the general reliability of potential trading partners becomes especially important, though clearly it is relevant in any environment where few opportunities exist to asses such matters personally.

Further notes

Keywords for transnational law: Dynamic / Evolving; Cross-border; Borderless → Globalization; Compromise /

Consensual / Understanding / Voluntary / Cooperation / Bottom-up; Globalization; Undeveloped; Uncertainty; Responsibility; Regulation; Jurisdiction; Binding; Harmonisation; Sensitivity; Ubiquitous

Utopia with arbitration being something like a myth.

5 I hope it also reminds you of some fascinating legal theory courses…

You have the award, but you need the enforcement. For this, you need national jurisdiction. How often, after the award, go the companies to the courts because they do not want to pay voluntarily (which means they would have to be forced)?

Problem: we move from certainty, which is national law, towards transnational law, which is uncertain, to go back to the national courts for application of the award.