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

Abstract

Introduction 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