Calliess, Gralf-Peter; Freiling, Jörg; Renner, Moritz --- "Transnational Governance and Evolutionary Theory" [2011] ELECD 252; in Zumbansen, Peer; Calliess, Gralf-Peter (eds), "Law, Economics and Evolutionary Theory" (Edward Elgar Publishing, 2011)

Book Title: Law, Economics and Evolutionary Theory

Editor(s): Zumbansen, Peer; Calliess, Gralf-Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448230

Section: Chapter 16

Section Title: Transnational Governance and Evolutionary Theory

Author(s): Calliess, Gralf-Peter; Freiling, Jörg; Renner, Moritz

Number of pages: 16

Extract:

16. Transnational governance and evolutionary
theory
Gralf-Peter Calliess, Jörg Freiling and Moritz Renner

1. CROSS-BORDER COMMERCE AND TRANSNATIONAL
INSTITUTIONS

In spite of all efforts to harmonize private law and to facilitate judicial cooperation,1 the
nation-state and its legal system still appear largely unable to effectively regulate global
commerce. Depending on the specifics of the involved jurisdictions, cross-border transac-
tions face varying degrees of uncertainty. In sum, international trade operates under cir-
cumstances which are appropriately described by the eye-catching term of `lawlessness'.2
At the same time, a host of private governance mechanisms is available to international
commerce. Such private legal services might be bundled into effective private governance
regimes or private legal systems, stepping in the place of national regulatory structures.3
Empirical research, conducted as part of an interdisciplinary research project in Bremen,4
has revealed an increasing transnationalization as a basic pattern in the governance of
cross-border transactions.5 Triggered by the globalization of commerce, economic gov-
ernance, understood as the provision of `good order and workable arrangements'6 for
business purposes, is at the same time internationalized and privatized.
In international trade, private governance mechanisms thus provide for what used to be
thought of as a genuinely sovereign affair: legal certainty. In this regard, our studies on
off-shoring in the software industry,7 the international timber trade,8 and the role of inter-
national law firms,9 have shown that economic agents in cross-border settings increasingly
...