Academic journal article Law and Contemporary Problems

The Interlegality of Transnational Private Law

Academic journal article Law and Contemporary Problems

The Interlegality of Transnational Private Law

Article excerpt

I

PRIVATE LAW AND THE PLURAL NORMATIVE ORDERS OF TRANSNATIONAL GOVERNANCE

This article describes transnational private law as a decentralized and intermediate form of transnational governance that recognizes and manages the multiplicity of norms generated by plural normative systems in our contemporary world society. These include international and municipal state systems, nonstate social systems, and private ordering by parties. Consistent with an approach that views globalization as changing the nature of the sovereignty of states, (1) the article draws on the rich tradition of private law, considered with its international dimensions, to find both a concrete example of and a model for understanding the complex role of the state in the plural normative orders of the "postnational constellation." (2) In this task, this article views private law understood in its international context as exemplary of an intermediate level of transnational governance. (3)

With a focus on the plural normative orders of international business transactions, the article discusses how transnational private law (4) addresses the limits of theoretical understandings of global business norms informed by global legal pluralism. Not only is transnational private law one important normative regime of international business, but it is also identified as providing a good analytical model for understanding the interrelationship among plural norms. In contrast to leading accounts of global business relations, this article's account of transnational private law emphasizes the plural character of each of the multiple legal regimes of international business, whether state law or nonstate law. Connected with that plural character of state and nonstate normative orders, this model describes a view of the normative interrelationship not simply as a place of harmonization, but also as a place of productive normative contestation.

Transnational private law is used as a frame to consider private international law together with private law. (5) An appreciation of private law as concerned with the relationship among plural and transnational normative orders is obscured because subjects of private law and private international law are typically considered separately. (6) When viewed together, a sense of the long-established task for private law of relating normative orders that challenge state boundaries becomes clearer.

Viewing transnational private law in this way, the connection among private law, global legal pluralism, and transnational governance of business relations is made clearer. The concept of transnational governance posits that, in our "partially globalized world," (7) a multiplicity of often overlapping forms of cross-border and subnational governance, including state and nonstate forms, creates governance beyond traditional state models but short of world government. Transnational private law plays a significant role in global business, whether through the facilitation of international business transactions or through the regulation of such transactions by transnational private litigation or by regulatory standards included as terms of private international contracts. This function for transnational private law endures because most global economic activity remains embedded in configurations of state laws and institutions. (8) In this sense, both state and nonstate normative orders related to international business remain plural regimes; there is no complete separation of either the state or the nonstate orders. If that is the case, the regulatory function of private law in a global era includes the subtle task of coordinating both state and nonstate normative orders. By foregrounding the centrality of both state and nonstate norms, private law provides a useful corrective to a tendency in doctrinal-law scholarship to focus on state norms, and the tendency in leading works of global legal pluralism to emphasize nonstate normative orders. …

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