Transformations of Commercial Law : New Forms of Legal Certainty for Globalized Exchange Processes?

Since the golden age of the nation state, the extent to which commerce is conducted across borders has risen substantially. Economic globalization thus has led to a shift in the demand structure for institutions that support commerce. Over the past forty years the need for institutions adapted to international commerce has increased. In other words, a trend emerged towards the internationalization of the state function to provide for the normative good of legal certainty for commerce. Since the nation states’ attempts to shift the regulatory responsibility for the institutional organization of cross-border commerce to public international organizations and to exercise the operational responsibility by means of judicial cooperation in commercial matters according to the thus created international treaties have had little success, the normative vacuum left by nation states was filled by all kinds of private governance mechanisms and private legal services for international commerce. As a result, private or hybrid actors took over not only operational, but also regulatory responsibility. These trends towards the internationalization and privatization of responsibility for the provision of legal certainty combine to what we call the transnationalization of commercial law. While the state continues to take responsibility for domestic commerce, economic globalization leads to a decrease in the relative weight of public institutions and to a corresponding increase in the overall importance of private ordering with regard to the provision of the normative good of legal certainty for commerce. In order to learn more about how cross-border commerce in fact is institutionally organized, we conducted field studies based on interviews with involved merchants and lawyers as well as a participant observation and file analysis in a law firm. We present results of three studies, one on relational contracting in the field of international outsourcing of software development, another on the lex mercatoria in the field of international timber trade, and a third on the role of law firms in the organization of cross-border commerce