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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 (Draft 0.90 - 2000.08.27 ;)

Transnational contract "law", trends and supportive structures

9. Tools in future development

An attempt should be made by the legal profession to be more contemporary and to keep up to date with developments in technology and the sciences, and to adopt effective tools where suitable to achieve their goals. Technology one way or another is likely to encroach further upon law and the way we design it.

Science works across cultures and is aspired to by most nations as being responsible for the phenomenal success of technology (both are similarly associated with globalisation). Science is extending its scope to (more confidently) tackle complex systems. It would not hurt to be more familiar with relevant scientific concepts and terminology. Certainly lawyers across the globe, myself included, would also benefit much in their conceptual reasoning from an early dose of the philosophy of science,  68  what better than Karl Popper on scientific discovery and the role of "falsification" and value of predictive probity.  69  And certainly Thomas Kuhn on scientific advancement and "paradigm shifts"  70  has its place. Having mentioned Karl Popper, it would not be unwise to go further (outside the realms of philosophy of science) to study his defence of democracy in both volumes of Open Society and Its Enemies  71 

Less ambitiously there are several tools not traditionally in the lawyers set, that may assist in transnational infrastructure modelling. These include further exploration and development of the potential of tools, including to suggest a few by way of example: flow charts, fuzzy thinking, "intelligent" electronic agents and Net collaborations.

In the early 1990's I was introduced to a quantity surveyor and engineer who had reduced the FIDIC Red Book   72  to over a hundred pages of intricate flow charts (decision trees), printed horizontally on roughly A4 sized sheets. He was employed by a Norwegian construction firm, who insisted that based on past experience, they knew that he could, using his charts, consistently arrive at answers to their questions in a day, that law firms took weeks to produce. Flow charts can be used to show interrelationships and dependencies, in order to navigate the implications of a set of rules more quickly. They may also be used more proactively (and ex ante rather than ex post ) in formulating texts, to avoid unnecessary complexity and to arrive at more practical, efficient and elegant solutions.

Explore such concepts as "fuzzy thinking"  73  including fuzzy logic, fuzzy set theory, and fuzzy systems modelling, of which classical logic and set theory are subsets. Both by way of analogy and as a tool fuzzy concepts are better at coping with complexity and map more closely to judicial thinking and argument in the application of principles and rules. Fuzzy theory provides a method for analysing and modelling principle and rule based systems, even where conflicting principles may apply permitting inter alia working with competing principles and the contextual assignment of precision to terms such as "reasonableness". Fuzzy concepts should be explored in expert systems, and in future law. Problems of scaling associated with multiple decision trees do not prevent useful applications, and structured solutions. The analysis assists in discerning what lawyers are involved with.

"Intelligent" electronic agents can be expected both to gather information on behalf of the business community and lawyers. In future electronic agents are likely to be employed to identify and bring to the attention of their principals "invitations to treat" or offers worthy of further investigation. In some cases they will be developed and relied upon as electronic legal agents, operating under a programmed mandate and vested with the authority to enter certain contracts on behalf of their principals. Such mandate would include choice of law upon which to contract, and the scenario could be assisted by transnational contract solutions (and catered for in the design of "future law").

Another area of technology helping solve legal problems relates to various types of global register and transaction centres. Amongst them property registers being an obvious example, including patents and moveable property. Bolero providing an example of how electronic documents can be centrally brokered on behalf of trading parties.

Primary law should be available on the Net free, and this applies also to "IoL" and the static material required for their interpretation. This should be the policy adopted by all institutions involved in contributing to the transnational legal infrastructure. Where possible larger databases also should be developed and shared. The Net has reduced the cost of dissemination of material, to a level infinitesimally lower than before. Universities now can and should play a more active role. Suitable funding arrangements should be explored that do not result in proprietary systems or the forwarding of specific lobby interests. In hard-copy to promote uniform standards, institutions should also strive to have their materials available at a reasonable price. Many appear to be unacceptably expensive given the need for their promotion and capacity building, amongst students, and across diverse States.

Follow the open standards and community standards debate in relation to the development of technology standards and technology infrastructure tools - including operating systems,  74  to discover what if anything it might suggest for the future development of law standards.


 68. An excellent approachable introduction is provided by A.F. Chalmers What is this thing called Science? (1978, Third Edition 1999).

 69. Karl R. Popper The Logic of Scientific Discovery (1959).

 70. Thomas S. Kuhn The Structure of Scientific Revolutions (1962, 3rd Edition 1976).

 71. Karl R. Popper The Open Society and Its Enemies: Volume 1, Plato (1945) and The Open Society and Its Enemies: Volume 2, Hegel & Marx . (1945)

 72. FIDIC is the International Federation of Consulting Engineers ‹http://www.fidic.com/

 73. Concept originally developed by Lotfi Zadeh Fuzzy Sets Information Control 8 (1965) pp 338-353. For introductions see Daniel McNeill and Paul Freiberger Fuzzy Logic: The Revolutionary Computer Technology that is Changing our World (1993); Bart Kosko Fuzzy Thinking (1993); Earl Cox The Fuzzy Systems Handbook (New York, 2nd ed. 1999). Perhaps to the uninitiated an unfortunate choice of name, as fuzzy logic and fuzzy set theory is more precise than classical logic and set theory, which comprise a subset of that which is fuzzy (representing those instances where membership is 0% or 100%). The statement is not entirely without controversy, in suggesting the possibility that classical thinking may be subsumed within the realms of an unfamiliar conceptual paradigm, that is to take hold of the future thinking. In the engineering field much pioneer work on fuzzy rule based systems was done at Queen Mary College by Ebrahim Mamdani in the early and mid-1970s. Time will tell.

 74. See for example Open Sources : Voices from the Open Source Revolution - The Open Source Story http://www.oreilly.com/catalog/opensources/book/toc.html


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