1) 15 January Transnational Law

PETER ZUMBANSEN TRANSNATIONAL LA

Transnational law originated in Jessups (Yale professor, 1955) lecture he challenged the boundaries international public law and international private law. or Jessup, !transnational includes all laws that regulate actions or events transcending national frontiers. "oth #ublic international law and private international law are included, and other rules that do not fit in one of these two categories. $n the other hand, le% &ercatoria, corporate governance and hu&an rights litigation have also successfull' proven that the' are transnational law.

Jessup sa's law is not either purel' national or international law. L!" #!r$atoria #ost())*, law'ers wor+ed out a new for& of the le% &ercatoria revival of the notion of borderless, universal trade law of nations. $n(going debate between traditionalists (the' e&brace the e&ergence of a self(producing legal order a&ong co&&ercial actors, the' thin+ that a repoliti,ation of the world will have to ta+e place) and transnationalists (the' want the state to continue to enforce the arbitral awards). Transnational brea+s with the separation between do&estic and international proble&s %or&orations -orporations have beco&e transterritorial. The law governing a &ultinational corporation &ust be through a &ulti(level and &ulti(polar legal regi&e of hard of soft law. .n regards of corporations, the transnational law &a+es a difference between hard law and soft law. /ard law0 it governs the corporation through co&pan' law, labour law, 1oft law0 corporate governance codes, voluntar' codes of conduct, hu&an rights codes

The line between hard law and soft law is not alwa's eas' to draw2 -aranta doesnt thin+ that soft law is soft. Pu'li$ int!rnational law .n the e'es of the law'ers of the second half of the *3th centur', transnational law is a real challenge to the state centred view on relationships between states. "efore, international relations were seen fro& a state(centred view. 4on(state actors have beco&e increasingl' &ore i&portant. Transnational law is not onl' a private law based transactions between states. .t also involves non state actors and regulator' networ+s. El(ar !n$y$lo&a!)ia o* $o#&arati+! law , Transnational law tends to destro' the conception that states alone are relevant actors in border crossing activit'. The *1th centur' is &ar+ed b' strongl' d'na&ics in international relations. or ad&inistrative law'ers, the role of the stations has been changing dra&aticall'. 5 deconstruction of the state is ta+ing place. 6ecentl', ad&inistrative law has beco&e ver' i&portant in transnational law. There is a &ultitude of nor& &a+ers -u#an ri(.ts liti(ations -ivil litigation see+ing co&pensation for hu&an rights abuses have occupied courts around the world in the last two decades of the *3th centur'. .n &ostl' all cases, the' failed to overco&e state i&&unit' (states are i&&une fro& lawsuits in foreign states courts)

or the' were re7ected because the courts were declared ill(suited to hear cases involving for awa' incidents. "ut since then, the nor&s governing the hu&an rights clai&s are increasingl' of border(transgressing nature. 5 81 court dis&issed the 5partheid class actions. This action has been brought b' a large group of 5partheid victi&s against corporations for their collaboration with the 1outh 5frican regi&e during 5partheid. 1a&e happened in 9er&an, 9reece, "ritain, .tal'. :ven if the case has been dis&issed, the -ourts have anal'sed it 2 That shows the' are addressing issues that go be'ond their borders. Transnational l!(al .istory an) so$i!tal #!#ory "ig bang of &ilitar' and political revolution. #ost apartheid 1outh(5frica, :ast )est 9er&an narratives of the 4a,i past to post genocide 6wanda are good e%a&ples of how to go to the future will +eeping the past in &ind. Transnational l!(al !)u$ation 1tudents have beco&e &ore &obile. 1a&e for e&plo'&ent possibilities after graduation.

-AT IS TRANSNATIONAL LA
T.! s$o&! o* transnational r!(ulation

/RO0ER %OTTERRELL)

;aw is not li&ited to nations an'&ore but goes be'ond their borders. :8 citi,ens are now used to the fact that their law does not onl' co&e fro& their national 7urisdictions an'&ore, but has :urope(wide institutions as sources. 4on(state bodies tend to have an increasing influence in the law &a+ing in different fields )e can spea+ fro& new legal relations, which are neither &unicipal 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. .t can also signals a space for regulation not 'et (full') e%isting but for which a need is felt in cross(border interactions. 1o&e would even li+e to sa' that transnational law includes all law which regulates actions or events that transcend national frontiers. .t would therefore include both national and international law. $n the other hand, it is also said that it is conceptuall' distinct fro& national and international law as its primary sources and addressees are neither nation-state agencies nor international institution founded on treaties or conventions but private actors. T.! +alu! o* #o)!ls an) #a&s ;aw'ers often thin+ that all law is the law of the nation-state and that international law is significant as law onl' as it is a pro7ection of the sovereignt' of nation(states. Transnational law is an e%tension of national sovereign 7urisdiction, or the creation of law b' international agencies or through international instru&ents ulti&atel' validated b' the e%press or tacit authorit' of sovereign states. )hat is to be &ade of <soft law1=> 1o&e account has to be ta+en of it, if onl' as doctrine, perhaps on the way to becoming law and ac?uiring so&e legal authorit'. To invo+e an idea of transnational law is to suggest that law has new sources, locations, and bases of authorit' Transnational law in l!(al &.iloso&.y /*as$inatin() -an the concept of law be &ade to e&brace legal transnationalis&@ that is law no longer understood in its central case as being state law2>

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 .

 Aon Baniels then proceeds to a <s'ste&ic reconstruction= of /arts concept of law, which is <the union of pri&ar' and secondar' rules=. Aon Baniels considers that pri&ar' rules (obligation(i&posing) alone could a&ount to law. Aon Baniels clai&s that certain conditions have to be fulfilled so that pri&ar' rules can be recogni,ed as law0 1. *. C. 5lwa's multilateral (relating to a group, not to an individuals personal &oral convictions Decisive (unli+e &oral rules that can be surrounded b' a&biguit') <Justice apt= (concerned with <the right and proper thing to do=, <the done thing=, or what is <fair=).

or /art, the union of pri&ar' and secondar' rules is needed to institutionali,e and develop law with elaborate agencies and practices (also in transnational conte%t) but it is not essential for the existence of law.

Aon Baniels adds a new categor' of rules, the lin age rules. Law as institutionali1!) )o$trin! or /art, secondar' rules &ar+ the transition from a prelegal to a legal regime! /art places the union of pri&ar' and secondar' rules is at the center of law as an idea .

Pri+at! an) &u'li$ in transnational r!(ulation2 $ne of their &ain the&es is that public and private cannot realisticall' be separated. "oft law mechanisms may be attached to hard law, or introduced as a prelude to the hardening of guidelines into state or international law #e.g.0 -orporate governance &anuals$. Law in t.! tool'o" o* (o+!rnan$! #!$.anis#s3 -alliess and Du&bansen (-ED) identif' twelve possible <generic governance &echanis&s=, ranging fro& state law, courts, and legal sanctions through tripartite arbitration, etc. %hat will be optimal or possible depends on the nature of transactions and relations between those engaged in them. The' base the&selves on 4i+las ;uh&anns s'ste&s theor'5 and see law as reconstructing conflicts, alienating the& for& the social conte%ts in which the' arise, and redefining the& in ter&s of binar' legalFillegal code. The sole function of law is the stabilization of normative expectations. Transnational governance regimes that ta e on this function can develop into legal systems! 5 <private legal s'ste&= would be one that could <bundle private governance &echanis&s which fulfill legislative, adjudicative, and enforcement functions into an effective and operational regi&e &ffective enforcement would probabl' be prohibited b' state law. $ther wa's have been used F suggested such as < verbali'ation of conflicts! Rou(. %ons!nsus an) Runnin( %o)! /R%R%), 'otto#4u& r!(ulation There is a need to thin+ about the law in new wa's0 e&phasi,ing the creation of nor&s and their authorit' in <botto&(up= processes of negotiation and consensus for&ation. The 6-6- allows .nternet enthusiast with var'ing degrees of technical e%perience to engage in collective deliberation and e%peri&entation ai&ed at producing agreed technical standards for the operation of the .nternet. 5 business networ+ &a' prioriti,e cooperation and consensus within its &e&bers but its orientation will be to its &e&bers profit, and it has no need to ai& at openness and inclusiveness. 6-6- is <a &i%ed, public(private, d'na&ic nor&(creation process= and <a particular for& of societal self( governance= that co&ple&ents &unicipal and international regulation, Law an) transnational n!twor5s o* $o##unity
2

See on !aniels, as "uoted in the paper, if you want to learn more about these fundamental issues. #e basically adapted #.$.%. #art&s 'asterpiece The Concept of Law and named, remarkably, his own book The Concept of Law from a Transnational Perspective (2)1)*.
+

mostly based on ,alliess - .umbansen&s book Rough Consensus and Running Code : A theory of Transnational Private Law (2)1)*, which seems to be almost as remarkable as the previous one.
/ 2

0livier 1illiamson&s economics of governance 3 hope it also reminds you of some fascinating legal theory courses4

 .f transnational law relates to social relations e%tending across the borders of national societies, it &a' be better to see the social in a wa' that avoids these national connotations. The social can be su&&ari,ed as &ade up of networ+s of interpersonal relations which &ust have so&e &ini&u& degree of stabilit'. )e can then spea+ of networ+s of community. $ne &ight thin+ of transnational networ+s of co&&unit' as the ulti&ate source of their own legal regulation but, e?uall', as being sub7ect to legal regulation created in other such networ+s that i&pinge on the&. Two aspects have to be ta+en into consideration0 1. *. 6elations of co&&unit' are al&ost alwa's une?ual, structured b' power, and the regulation created in the& will reflect this. )here can their authorit' and legiti&ac' co&e fro& if the' cannot appeal to the de&ocratic foundations on which &unicipal law is usuall' assu&ed to rel'>

.n internet transactions there is a need to build confidence in the general reliabilit' of potential trading partners beco&es especiall' i&portant, though clearl' it is relevant in an' environ&ent where few opportunities e%ist to asses such &atters personall'. 6urt.!r not!s Ge'words for transnational law0 B'na&ic F :volving@ -ross(border@ "orderless H 9lobali,ation@ -o&pro&ise F -onsensual F 8nderstanding F Aoluntar' F -ooperation F "otto&(up@ 9lobali,ation@ 8ndeveloped@ 8ncertaint'@ 6esponsibilit'@ 6egulation@ Jurisdiction@ "inding@ /ar&onisation@ 1ensitivit'@ 8bi?uitous You have the award, but 'ou need the enforce&ent. or this, 'ou need national 7urisdiction. /ow often, after the award, go the co&panies to the courts because the' do not want to pa' voluntarily (which &eans the' would have to be forced)>

8topia with arbitration being so&ething li+e a &'th.

(roblem) we &ove fro& certaint', which is national law, towards transnational law, which is uncertain, to go bac+ to the national courts for application of the award.