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Vol 23 No 3 March/April 2018

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Scamell and Gasztowicz on Land Covenants

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Rough Consensus and Running Code: A Theory of Transnational Private Law

ISBN13: 9781841139746
Published: May 2010
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £65.00
Paperback edition , ISBN13 9781849463546

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Private law has long been focus of efforts to explain wider developments in global law. As consumer transactions and corporate activities have developed with scant regard to legal and national boundaries, private law theorists have been called upon to investigate what the international law framework might look like.

Moving between 'hard' and 'soft' laws, as well as official, unofficial, direct and indirect regulation, this book constitutes the first comprehensive attempt to develop the framework for a private law regulatory regime which mediates between state-society and public-private relations on the one hand and a fast-evolving transnational normative field on the other.

Rough Consensus and Running Code describes and assesses the different law-making regimes currently observable in the transnational arena. Its core aim is to reassess, in terms of its legitimacy, the transnational regulation of contracts and corporate law as undertaken by regulatory regimes which are neither purely national nor international, neither exclusively public, nor private in nature. Instead the institutions and the principal actors are hybrids.

The challenge for scholars of public and private international law is to incorporate the new norms into existing bodies of law and this, ultimately, is the challenge met by this new work.

Conflict of Laws
1. Law's Elusive Boundaries
I. Border Crossings
II. Towards a Legal Critique of Transnational Governance Institutions
III. Law's Elusive Empire?
2. Towards A Theory of Transnational Private Law
I. Seeing the (Global) World Through a Private Lawyer's Eyes
A. Crucial Intersections: Lex mercatoria and Legal Pluralism
B. Communities of Interest and Private Governance Regimes: The Conundrum of Transnational Commercial Law
C. Markets as Regulators: It's the Economy, Stupid—Or, is It?
D. Law and the Transformation of State Regulatory Functions
II. Ubiquitous Law
A. Normativity versus Realism: Law versus Power
B. The Transnational: A Realm of Borderless Self-Regulation?
C. Private Ordering and Public Authority: Scrutinising Democratic versus Economic Functions of Law
III. A Theory of Transnational Private Law
A. Co-ordination versus Regulation: Revisiting the Public-Private Divide
B. The Hybrid Character of Transnational Law Regimes
C. The Governance Mode of Transnational Law Regimes
(i) Mapping Economic Governance
(ii) The Recombinant Governance Mode of Transnational Commercial Law
D. Soft Law, Hard Law, and Legitimacy
E. Rough Consensus and Running Code
(i) Internet Governance: Legitimising Open Technical Standards
(ii) Private Law Harmonisation
(iii) Modern Customary Law
(iv) The Making of Transnational Private Law
3. Transnational Consumer Contracts
I. Private Ordering in B2C E-Commerce
A. Online Reputation
B. Trustmarks and Codes of Conduct
C. Online Dispute Resolution
D. Method of Payment and Credit Security
II. Transnational Law Regimes: the Role of Virtual Marketplaces
III. Reflexive Consumer Protection Law
A. Reflexive Trustmarks: Contractual Standards of Hybrid Organisations
(i) Secondary Trustmarks at the National Level
(ii) Supranational Standardisation via Co-Regulation?
(iii) Global Linkage
B. Law-Consumer Protection: ODR Standards and their Implementation
(i) Guidelines for providers of ODR procedures
(ii) The Implementation of Global ODR Standards
IV. RCRC in the Making of Transnational Consumer Contract Law
4. Transnational Corporate Governance
I. Corporate Governance Codes
A. Corporate Governance
B. Corporate Governance and Political Economy
C. Law-Making in Corporate Governance
(i) The German Corporate Governance Code as an Example of RCRC
(ii) Who Makes Company Law?
(iii) Corporate Law Making Between State and Society
(iv) The Reform of German Corporate Governance: The Intricacies of Rough Consensus and Running Code
II. Transnational Corporate Governance and Executive Compensation
A. The Transnational Embeddedness of European Corporate Governance Regulation
B. 'New' and 'Experimentalist Governance' in European Corporate Law Regulation: RCRC as Transnational Legal Pluralism
(i) The Polarities of EU Governance: Global Competitiveness and Political-Economic Integration
(ii) Reflexive Corporate Governance
(iii) European Corporate Governance Regulation and RCRC
C. The Case of Executive Compensation
(i) Breaking the Political Deadlock: Governance by Expertise
(ii) Executive Compensation: Governance by Transparency
D. 'Germany Inc' and Executive Compensation
(i) The Political Economy of Corporate Governance Reform in Germany
(a) Governing 'Germany Inc'
(b) Hybridisation of Law-Making: The Return of the State?
(ii) Transnational Corporate Governance as Spatio-Temporal Assemblage
E. Transnational Corporate Governance Regulation as RCRC
5. Rough Consensus and Running Code in Context
I. Law and Social Norms
II. Soft Law
A. Asking the Right Questions?
B. Soft Law as Embarrassment
III. Customary International Law (And Its Limits)
A. Elements of Customary International Law
B. Ships Passing in the Night?
C. The Attack on Customary International Law
D. Customary International Law in the Making of Global Law
IV. Transnational Private Law: Hard Law, Soft Law, Reflexive Law and the Conditions for Private Law-Making

Series: Hart Monographs in Transnational and International Law

Human Rights and Violence: The Hope and Fear of the Liberal World ISBN 9781849465335
To be published October 2019
Hart Publishing
Control Beyond the State: Transnational Counter-Terrorism Law ISBN 9781849465595
To be published March 2019
Hart Publishing
Institutional Problem in Modern International Law ISBN 9781849465229
Published September 2016
Hart Publishing
Transconstitutionalism ISBN 9781849464185
Published May 2013
Hart Publishing
Transconstitutionalism (eBook) ISBN 9781782251255
Published May 2013
Hart Publishing
£49.99 + £10.00 VAT
£76.50 + £15.30 VAT
£26.98 + £5.40 VAT
£62.49 + £12.50 VAT
The Concept of Unity in Public International Law (eBook) ISBN 9781847319173
Published March 2012
Hart Publishing
£54.16 + £10.83 VAT
The Concept of Unity in Public International Law ISBN 9781849460439
Published March 2012
Hart Publishing
The Payment Order of Antiquity and the Middle Ages: A Legal History ISBN 9781849460521
Published November 2011
Hart Publishing
The Payment Order of Antiquity and the Middle Ages: A Legal History (eBook) ISBN 9781847318664
Published November 2011
Hart Publishing
£108.00 + £21.60 VAT
The Institutional Veil in Public International Law ISBN 9781841136349
Published September 2007
Hart Publishing
Terrorism and the State: Rethinking the Rules of State Responsibility ISBN 9781841136271
Published March 2006
Hart Publishing