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Part Ⅰ The Transnationalisation of Commercial and Financial Law.The Law Concerning Professional Dealings1

1.1 Introduction1

1.1.1 The Place and Evolution of Modern Commercial and Financial Law in Civil and Common Law.The Concept of Transnationalisation1

1.1.2.The Transnationalisation of Commercial and Financial Law.Common or Civil Law Approach? Methodology10

1.1.3 The Coverage of Domestic and Transnational Commercial and Financial Law15

1.1.4 Legal Dynamism as Key Notion in Transnational Commercial and Financial Law.Law as a Dynamic Concept in Modern Contract and Movable Property18

1.1.5.Legal Pragmatism at the Transnational Level.Notions of Certainty, Finality and Predictability.The Need to Find Structure, Not System30

1.1.6 Social, Economic, Intellectual or Democratic Legitimacy35

1.1.7 The Traditional Civil and Common Law Notions of Commercial Law.The Notion of Commerciality36

1.1.8 Old and New Commercial and Financial Law.Transnational Notion of Professionality, a Separate Legal Order for Professional Dealings, and the Role of International Arbitrators42

1.1.9 International Commercial Arbitration and International Commercial Courts49

1.1.10 Structure of this Volume53

1.2 The Origin and Evolution of Civil Law.Its Traditional Approach to Law Formation and to the Operation of Private Law(including Commercial and Financial Law)55

1.2.1 The Evolution of Modern Private Law and its Sources55

1.2.2 The Early Developments on the European Continent.Roman Law57

1.2.3 Classical Roman Law and the Corpus Iuris Civilis60

1.2.4 The Revival of Roman Law in Western Europe:The Ius Commune65

1.2.5 The Ius Commune and its Relationship to Local Law,Including Newer Commercial Law68

1.2.6 The Early Evolution of the Notion of Natural Law in Europe73

1.2.7 The Emergence of the Secular Natural Law School:Grotius's De lure Belli ac Pacis, its Approach and Impact76

1.2.8 The Status of State Law in the Philosophies of Grotius,Hobbes, Locke, Kant and Hegel.The Impact of the Age of Enlightenment and the Road to Codification of Private Law in France81

1.2.9 The German Historical and Romantic Schools.The Road to Private Law Codification in Germany87

1.2.10 The Civil Law National Codifications and their Coverage93

1.2.11 Nationalism and System Thinking.The Question of the Continued Relevance of the Civil Law Codification Idea97

1.2.12 Modern Policy Arguments in Favour of a Statist and Static Attitude towards the Formation of Private Law.Deficiency in System Thinking.Misunderstandings concerning Democratic Legitimacy and Certainty100

1.2.13 System Thinking and Interpretation in Civil Law:Begriffs-and Interessenjurisprudenz.Modern Hermeneutics103

1.3 The Origin and Evolution of the Common Law.Its Approach to Law Formation and the Operation of Private Law107

1.3.1 Common Law and Equity107

1.3.2 The Common Law Approach to Scholarship113

1.3.3 The Common Law Approach to Precedent, Legislation or Codification, and Statutory Interpretation115

1.3.4 Intellectualisation and Conceptualisation in Common Law.Modern American Academic Attitudes towards the Law and its Development:Legal Formalism and Realism122

1.3.5 Post-realism or Legal Functionalismin the US:The'Law and ...' Movements126

1.3.6 The Progress So Far132

1.4 The Sources of Law in Civil and Common Law Tradition.The Approach in Transnational Private Law and the Hierarchy of Sources and Norms in the Modern Lex Mercatoria137

1.4.1 Statutory and Other Sources of Law.Nationalism and System Thinking in Civil and Common Law137

1.4.2 Fact-and Law-finding in Civil and Common Law140

1.4.3 The Revival of the Traditional Sources of Law through Liberal Interpretation Techniques144

1.4.4 Survival of Transnational Legal Sources in Commercial Law.EU and Public International Law Attitudes148

1.4.5 Autonomous Legal Sources:Fundamental Principle151

1.4.6 Autonomous Legal Sources:General Principle153

1.4.7 Autonomous Legal Sources:Custom and Practices155

1.4.8 The Competition Between Custom and Statutory or Treaty Law162

1.4.9 Autonomous Legal Sources:Party Autonomy163

1.4.10 Autonomous Legal Sources:Treaty Law164

1.4.11 Uniform Law and Private International Law166

1.4.12 Domestic Laws as Autonomous Source of Transnational Law168

1.4.13 The Hierarchy of the Sources of Law in Modern International Commercial and Financial Law168

1.4.14 The Concept of Natural Law and the Legal Status and Force of Fundamental and General Principle in the Modern Lex Mercatoria172

1.4.15 An End to the Confining Views of Modern Legal Positivism, Formalism, and Nationalism in the Professional Sphere176

1.4.16 Dispute Prevention or Dispute Resolution? Law in Action or Law in Litigation179

1.4.17 The Role of National Courts and of International Commercial Arbitration181

1.4.18 Agents of International Convergence and Harmonisation:The Role of UNIDROIT, UNCITRAL, the ICC, The Hague Conference, the EU, and the American Law Institute and Commissioners on Uniform State Laws in the USA.The Impact of the International Legal Practice and Scholarship183

1.4.19 EU Attempts at Harmonising Private Law187

1.5 Cultural, Sociological and Economic Undercurrents in the Formation of Transnational Commercial and Financial Law(Modern Lex Mercatoria).Different Legal Orders, their Manifestation, and the Competition between Them192

1.5.1 The Concept of Legal Orders192

1.5.2 Law as Cultural Phenomenon194

1.5.3 Law as a Political Organisational Tool.The Importance of Diversity, Group Autonomy, Democracy, Rule of Law, and Human Rights198

1.5.4 The Revival of Legal Universalism in Professional Private Law201

1.5.5 Sociological and Economic Considerations in the Law205

1.5.6 The Competition between Transnational Law and Mandatory State Laws or National Public Policies and Public Order Requirements209

1.5.7 The Twentieth-century Dominance of the Statist Legal Orders and the Effect of Globalisation214

1.5.8 The Operation of Different Legal Orders in Private Law:Evolution of a US Federal Commercial Law, of Transnational Private Law Concepts in the EU, and of International Human Rights Law in the Council of Europe(European Court of Human Rights)219

1.5.9 The International Commercial and Financial Legal Order and its Relevance:The Role of Legal Theory,Legal History and Comparative Law223

Part Ⅱ The Nature, Status and Function of Private International Law231

2.1 Modern Private International Law231

2.1.1 The Underlying Concept of Modern Private International Law231

2.1.2 Earlier Approaches236

2.1.3 Drawbacks of the Modern Conflict Rules238

2.2 The Modern European and US Approaches to Conflicts of Law244

2.2.1 Refinement of the European Model244

2.2.2 Developments in the USA245

2.2.3 The Various Modern US Conflict Theories248

2.2.4 The European Approach of Exception Clauses:Reasonable and Fair Solutions in the Dutch Proposals251

2.2.5 The Role of Practitioners.Emphasis on the Facts rather than on the Rules:The Nature of the Relationship and of the Transaction.Practical Needs and Modern Interpretation Techniques.The Effects of Transnationalisation254

2.2.6 The Issue of Public Policy or Governmental Interests and its Impact.The Notion of Comity and its Application.Competition between Transnational and State Laws Revisited257

2.2.7 States as Counterparties262

2.2.8 Practical Issues Concerning Conflicting Public Policies:Effect on the Lex Mercatoria and the Importance of the Notion of Forum non Conveniens266

2.2.9 Party Autonomy and Contractual Choice of Law271

2.3 Interaction of Private International Law and Uniform Law274

2.3.1 Private International Law and the Application of Uniform Law274

2.3.2 The Situation with Regard to EU Directives of a Private Law Nature275

Part Ⅲ The Development of Transnational or International Commercial and Financial Law281

3.1 The Lex Mercatoria, Interrelation with Private International Law281

3.1.1 The Background to the Revival of the Lex Mercatoria281

3.1.2 The Concept of the Modern Lex Mercatoria as a Hierarchy of Norms284

3.1.3 The Major Protagonists of the Lex Mercatoria and Their Views:Legitimation291

3.2 The Hierarchy of Norms:Elaboration294

3.2.1 Fundamental Legal Principle.Transnational Rules of Contract Formation and the Normative Interpretation Technique294

3.2.2 Fundamental Principle.The Notion of Transnational Ownership.A Dynamic System of Modern Movable Proprietary Rights298

3.2.3 Eurobonds and Analogous Transnational Proprietary Structures.Fundamental Principle and Custom Support303

3.2.4 Fundamental Principle in Procedural Matters.306

3.2.5 Mandatory Customs and Practices307

3.2.6 Mandatory Uniform Treaty Law, Contractual Provisions(Party Autonomy), Directory Trade Practices, Directory Uniform Treaty Law and Common or General Legal Principles310

3.2.7 Domestic Laws, Private International Law:Mandatory Provisions and Public Policy or Regulatory Issues314

3.3 Operation of the Lex Mercatoria.Objections316

3.3.1 Operation of the Lex Mercatoria and Direct References to It316

3.3.2 Objections to the Lex Mercatoria Approach321

3.3.3 Application and Enforcement of the Lex Mercatoria323

Index325