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Revisiting the Autonomous Contract  1  (Draft 0.90 - 2000.08.27 ;)

Transnational contract "law", trends and supportive structures

1. Reinforcing trends: borderless technologies, global economy, transnational legal solutions?

2. Common Property - advocating a common commercial highway

3. Modelling the private international commercial law infrastructure

4. The foundation for transnational private contract law, arbitration

5. "State contracted international law" and/or "institutionally offered lex"? CISG and PICC as examples

6. Contract Lex design. Questions of commonweal

6.1 The neutrality of contract law and information cost
6.2 Justifying mandatory loyalty principles

7. Problems beyond uniform texts

7.1 In support of four objectives
7.2 Improving the predictability, certainty and uniform application of international and transnational law
7.3 The Net and information sharing through transnational databases
7.4 Judicial minimalism promotes democratic jurisprudential deliberation
7.5 Non-binding interpretative councils and their co-ordinating guides can provide a focal point for the convergence of ideas - certainty, predictability, and efficiency
7.6 Capacity Building

8. Marketing of transnational solutions

9. Tools in future development

10. As an aside, a word of caution

11. Endnote

Endnotes

Endnotes

Metadata

SiSU Metadata, document information

Manifest

SiSU Manifest, alternative outputs etc.

Revisiting the Autonomous Contract

Transnational contracting, trends and supportive structures

Ralph Amissah

copy @ Lex Mercatoria

Revisiting the Autonomous Contract  1  (Draft 0.90 - 2000.08.27 ;)

Transnational contract "law", trends and supportive structures

1. Reinforcing trends: borderless technologies, global economy, transnational legal solutions?

Globalisation is to be observed as a trend intrinsic to the world economy.  2  Rudimentary economics explains this runaway process, as being driven by competition within the business community to achieve efficient production, and to reach and extend available markets.  3  Technological advancement particularly in transport and communications has historically played a fundamental role in the furtherance of international commerce, with the Net, technology's latest spatio-temporally transforming offering, linchpin of the "new-economy", extending exponentially the global reach of the business community. The Net covers much of the essence of international commerce providing an instantaneous, low cost, convergent, global and borderless: information centre, marketplace and channel for communications, payments and the delivery of services and intellectual property. The sale of goods, however, involves the separate element of their physical delivery. The Net has raised a plethora of questions and has frequently offered solutions. The increased transparency of borders arising from the Net's ubiquitous nature results in an increased demand for the transparency of operation. As economic activities become increasingly global, to reduce transaction costs, there is a strong incentive for the "law" that provides for them, to do so in a similar dimension. The appeal of transnational legal solutions lies in the potential reduction in complexity, more widely dispersed expertise, and resulting increased transaction efficiency. The Net reflexively offers possibilities for the development of transnational legal solutions, having in a similar vein transformed the possibilities for the promulgation of texts, the sharing of ideas and collaborative ventures. There are however, likely to be tensions within the legal community protecting entrenched practices against that which is new, (both in law and technology) and the business community's goal to reduce transaction costs.

Within commercial law an analysis of law and economics may assist in developing a better understanding of the relationship between commercial law and the commercial sector it serves.  4  "...[T]he importance of the interrelations between law and economics can be seen in the twin facts that legal change is often a function of economic ideas and conditions, which necessitate and/or generate demands for legal change, and that economic change is often governed by legal change."  5  In doing so, however, it is important to be aware that there are several competing schools of law and economics, with different perspectives, levels of abstraction, and analytical consequences of and for the world that they model.  6 

Where there is rapid interrelated structural change with resulting new features, rather than concentrate on traditionally established tectonic plates of a discipline, it is necessary to understand underlying currents and concepts at their intersections, (rather than expositions of history  7  ), is the key to commencing meaningful discussions and developing solutions for the resulting issues.  8  Interrelated developments are more meaningfully understood through interdisciplinary study, as this instance suggests, of the law, commerce/economics, and technology nexus. In advocating this approach, we should also pay heed to the realisation in the sciences, of the limits of reductionism in the study of complex systems, as such systems feature emergent properties that are not evident if broken down into their constituent parts. System complexity exceeds sub-system complexity; consequently, the relevant unit for understanding the systems function is the system, not its parts.  9  Simplistic dogma should be abandoned for a contextual approach.


 1. /{ The Autonomous Contract: Reflecting the borderless electronic-commercial environment in contracting }/ was published in /{ Elektronisk handel - rettslige aspekter, Nordisk årsbok i rettsinformatikk 1997 }/ (Electronic Commerce - Legal Aspects. The Nordic yearbook for Legal Informatics 1997) Edited by Randi Punsvik, or at http://www.jus.uio.no/the.autonomous.contract.07.10.1997.amissah/doc.html

 2. As Maria Cattaui Livanos suggests in The global economy - an opportunity to be seized in Business World the Electronic magazine of the International Chamber of Commerce (Paris, July 1997) at ‹http://www.iccwbo.org/html/globalec.htm

"Globalization is unstoppable. Even though it may be only in its early stages, it is already intrinsic to the world economy. We have to live with it, recognize its advantages and learn to manage it.

That imperative applies to governments, who would be unwise to attempt to stem the tide for reasons of political expediency. It also goes for companies of all sizes, who must now compete on global markets and learn to adjust their strategies accordingly, seizing the opportunities that globalization offers."

 3. To remain successful, being in competition, the business community is compelled to take advantage of the opportunities provided by globalisation.

 4. Realists would contend that law is contextual and best understood by exploring the interrelationships between law and the other social sciences, such as sociology, psychology, political science, and economics.

 5. Part of a section cited in Mercuro and Steven G. Medema, Economics and the Law: from Posner to Post-Modernism (Princeton, 1997) p. 11, with reference to Karl N. Llewellyn The Effect of Legal Institutions upon Economics, American Economic Review 15 (December 1925) pp 655-683, Mark M. Litchman Economics, the Basis of Law, American Law Review 61 (May-June 1927) pp 357-387, and W. S. Holdsworth A Neglected Aspect of the Relations between Economic and Legal History, Economic History Review 1 (January 1927-1928) pp 114-123.

 6. For a good introduction see Nicholas Mercuro and Steven G. Medema, Economics and the Law: from Posner to Post-Modernism (Princeton, 1997). These include: Chicago law and economics (New law and economics); New Haven School of law and economics; Public Choice Theory; Institutional law and economics; Neoinstitutional law and economics; Critical Legal Studies.

 7. Case overstated, but this is an essential point. It is not be helpful to be overly tied to the past. It is necessary to be able to look ahead and explore new solutions, and be aware of the implications of "complexity" (as to to the relevance of past circumstances to the present).

 8. The majority of which are beyond the scope of this paper. Examples include: encryption and privacy for commercial purposes; digital signatures; symbolic ownership; electronic intellectual property rights.

 9. Complexity theory is a branch of mathematics and physics that examines non-linear systems in which simple sets of deterministic rules can lead to highly complicated results, which cannot be predicted accurately. A study of the subject is provided by Nicholas Rescher Complexity: A Philosophical Overview (New Brunswick, 1998). See also Jack Cohen and Ian Stewart, The Collapse of Chaos: Discovering Simplicity in a Complex World (1994).


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