The Commercial Law for Bosnia and Herzegovina from 1883: A legal transplant debate perspective

This chapter looks at the process of international rule of law assistance in war to peace transitions from the perspective of legal transplants. Those familiar with the short but dynamic history of international promotion of legal reforms in developing countries (starting with the law and development movement in the 1960s) also know of the intense debate on legal transplants. Stripped to its essentials the debate has centered on the following question: is it possible to transfer laws and legal institutions from one legal culture to another?Academics and practitioners that answer this question in the affirmative point to the way law travels. The spread of Roman law throughout Europe, or international or transnational commercial law of today, testifies to the possibility of legal transplants. Opponents in the other corner of the ring are often inclined to agree to the fact that law (or legal rules) travel, but then they ask what the effects of substantial legal borrowing is, ‘how does the transplanted law work and function?’ The litmus test is if law, once it has been transplanted, take the same function, role, and appearance as in the country of origin.There is a need to revive the discussion on legal transplants within the context of war to peace transitions. The reason for this is simply that the process of legal borrowing, transfer and transplant is reaching monumental proportions within international assistance to war-torn societies (see i.e. United Nations Report of the Secretary-General. In these situations, transitional and interim governments face a paradoxical equation. While hard-pressed to break with the past and establish a new normative framework for governance, the weak capacity of interim governments makes the transition impossible. As deus ex machina the international community comes to assist in the legal transformation and state building under the banner of ‘rule of law promotion’.

The General Principles of Commercial Law is a general summary and abstraction of the normative system of commercial law, which is of great guiding significance for the rules of adjudication of disputes in commercial practice in reality, and the lack of general commercial law norms makes the research and teaching of the General Theory of Commercial Law particularly important. The study of general commercial law is undoubtedly of more fundamental significance than the study of specific areas of commercial law. With the development of social economy, commercial law embodies more and more technical and practical, and the cultivation of commercial legal talents is more and more oriented to the employment demand, case study teaching has advantages in the teaching of general commercial law and should be emphasized. In the case teaching of general commercial law, the irrevocability of securities trading results can clearly reflect the style of commercial law to protect the security of transactions. The proportion and priority of case teaching in the teaching of general commercial law should be emphasized.

ARCHIVAL RESEARCH IN QING LEGAL HISTORY* Nancy Park and Robert Antony Over the past few years there has been a resurgence of interest in Qing law, a field that peaked in the 1960s and early 1970s with the publication of several classic works on late imperial law and government.1 fascinating subject, branching off into the spheres of civil, administrative, and commercial law as well as continuing the more traditional focus on criminal law. The research potential of Qing law seems limitless, and the possibilities are enhanced by a wealth of virtually untapped primary and archival sources. The Number One Historical Archives of China (Zhongguo diyi lishi danganguan ) in Beijing houses a rich trove of materials on Qing law and related topics in social and economic history.2 During the three-year period in which one or both of us worked at the Number One we handled many different types of legal documents, and in this article we would like to share with a larger audience what we learned about the types and uses of these materials. Although our survey is scarcely exhaustive, we have tried to describe some of the major archival sources for Qing law in order to bring them to the attention of other researchers. We have directed our remarks to scholars who are primarily interested in using legal documents in the Number One; however, 'Nancy Park worked in the Archives from 1990 to 1991, collecting information on bribery cases involving governors-general and governors for her dissertation, "Corruption and Its Recompense: Bribes, Bureaucracy, and the Law in Late Imperial China." Robert Antony worked there in 1985 and 1990 examining larceny cases for a study on "Bandits, Brotherhoods , and Qing Law in Guangdong, 1760-1840." We would like to thank the staff of the Number One Historical Archives as well as the Institute of Qing History and the Archival Department of Chinese People's University for their hospitality and assistance. For research funding and institutional support, we are both grateful to the National Academy of Sciences' Committee for Scholarly Communication with China, with Robert Antony additionally indebted to the Fulbright-Hays Program and Western Kentucky University. Finally, we wish to express our appreciation to Philip Kuhn, Robert Marks, Evelyn Rawski, and Kristin Stapleton for reading and commenting on this article. 1Among others, Ch'ii 1962; van der Sprenkel 1962; Bodde and Morris 1967; Watt 1972; and Metzger 1973. 2For descriptions of holdings at the Number One Historical Archives of China see Zhongguo diyi lishi dang'anguan guancang dang'an gaishu 1985; Bartlett 1981:81-110; Naquin 1980:45-60; and Shan 1981:3-8. Late Imperial China Vol. 14, No. 1 (June 1993): 93-137 93 94Nancy Park and Robert Antony primarily interested in using legal documents in the Number One; however, we believe that many of our comments have broader significance. On one level, much of what we describe about the organization and content of legal materials held by the Number One will be useful to individuals specializing in a wide range of topics in Qing history including, but not limited to, law. On a second level, our statements about the types and uses of particular documents within the Number One's archival collections hold true to a large degree for the archival holdings in Taiwan.3 We have organized this article according to major archival collections within the Grand Secretariat, Grand Council, Board of Punishments, and other central government organs. We have assumed the reader's acquaintance with the standard archival sources available for Qing history; therefore, we have concentrated on materials within each collection that hold the most promise for the study of law in late imperial China, prefacing our remarks with a short description of the collection as a whole. To make our comments as comprehensive and helpful as possible, we have included references to selected sources and research aids on Qing institutional and documentary systems.4 The Grand Secretariat Archive Inherited from the Ming dynasty, the Grand Secretariat (Neige) was the supreme advisory organ to the early Qing emperors until the development of the Grand Council (Junjichu) during the Yongzheng and early Qianlong reigns. Thereafter, the Grand Secretariat's power and prestige...

This edited collection brings together leading scholars and practitioners from various jurisdictions with essays and commentaries co-ordinated around the theme of alignments and misalignments between commercial law and commercial practice. The purpose of the book is to prompt a more critical and constructive reassessment of current commercial law and its practices, and to instigate a more fruitful dialogue between academics, judges, law reformers and practitioners. The result is a series of provocative and challenging essays addressing an enormous range of problems that are of intimate concern to commercial practice. Some essays focus on broad themes, such as globalization and trust. Others address more specific issues, such as contract interpretation or constraining modern management. Yet another group targets special problems, such as dematerialisation or super-priority, in order to assess the success of commercial law in meeting commercial demands. The depth and breadth of issues addressed is a credit to the authors.

Partnerships between medical schools and their clinical associates, which we describe in this article as academic clinical partnerships (ACPs), are powerful economic and social actors through their roles as major employers and procurers of goods and services. A broad spectrum of effects extending beyond the tripartite mission shapes the social contract between ACPs and the communities they serve. The authors present a model for identifying and measuring effects across this spectrum and illustrate the model's application with reference to specific case studies set in the United Kingdom. This model categorizes effects into five different domains: economic, human capital, social capital, knowledge, and place. These different effects express themselves along a spatial scale that varies from the very local to the global. The authors describe the theoretical background for each domain, as well as the methods required to identify and measure effects. These methods range from a quantitative economic impact analysis using extended input-output models to qualitative methods to capture social capital and place effects. The authors demonstrate how leaders in academic medicine can use the model to build a holistic picture of the societal effects of ACPs. Evidence of impact is of value to ACP leaders in engaging with both national and local stakeholders, and the approach is likely transferable to different countries.

The relationship between Yuan Shikai's government and merchants from 1914 to 1916 reflected the social effects caused by the reconstruction of a centralized political system and its subsequent disintegration. The political power wielded by merchants in the final years of the Qing was significantly reduced in the wake of Yuan's centralizing efforts. Even in economic matters, the merchants were able to contribute far less than before, despite their efforts to assert their views on the procedural regulation of official communications and commercial law and despite their attempts to seek the government's help in industrial and commercial developments. They had neither power to change the government's economic policies, nor the ability to resist Yuan's attempts to solve fiscal problems by imposing new taxes. When Yuan tried to become an emperor, the majority of merchants dared not to resist him openly for two reasons. First, Yuan's authoritarian rule reduced the room for civic activities to the minimum. Second, the majority of merchants worried more about economic development and political stability than the political form the government might take, whether a monarchy or a democracy. After the anti-monarchical movement developed its momentum, they gradually took the anti-Yuan side because they came to see Yuan as a destabilizing factor. Their fervent desire for political stability did not differ from earlier periods, but due to their weakened political influence, they did not play a significant role in the gradual disintegration of Yuan's power.

From Legal Imposition to Legal Invitation: From Transplants to Mutual Learning, Benchmarks and Best-Practice-Inspiration Ever since Alan Watson published his thought-provoking book on legal transplant, legal scholars seem to have imported their own ‘do-institutions-matter’ debate. Strong positions have been taken in the debate on the possibility of legal transplants. Some deem context-free legal transplants impossible or at least unwarranted, whereas others rally for a more liberal stance. Bob and Ann Seidman were always working at the heart of this most topical, scholarly debate – one of the most interesting debates on the crossroads of law and (political) societies in our age of globalization. This article tries to get at the heart of the debate on legal transplants, which is rooted in the immediate wake of decolonization and the ideological strife during the Cold War. Since then the world has changed dramatically. We now live in the age of globalization and possibilities for mass communication, information sharing and cooperation in ways unfathomable 40 years ago. This has undoubtedly had an impact on how jurisdictions learn and borrow legal concepts, rules and solutions from one another. Have these new developments and experiences outdated the legal-transplant debate or is it still relevant? The article argues that Bob and Ann Seidman’s position in the debate is still very relevant for present-day practices of legal borrowing and legal transplants. Key to this is their notion of contextual legal-legitimacy.

The Uniform Commercial Code determines the content of most commercial law default rules by incorporating common merchant practices. The success of this incorporation strategy depends on the likely efficiency of evolved commercial practices. In this Article, I use the best available theory of cultural evolution to analyze how and why commercial practices evolve. This analysis confirms that the incorporation strategy is far superior to a system in which lawmakers rely predominantly on individual analysis and experimentation to design commercial law. But the analysis also demonstrates that common commercial practices, and the laws incorporating them, are unlikely to be optimal, in the sense that they cannot be improved at any cost. There is good reason, then, to explore supplemental strategies for enhancing the efficiency of individual commercial practices on a selected basis. The viability of such strategies will depend on their costs and likely success in improving on commercial practice.

This paper explores the history of commercial law from ancient times to the Middle Ages, focusing on the impact of various civili- zations, including the Mesopotamia, Phoenicia, Greeks, Romans, and Arabs, on its development. The article also examines how commer- cial practices were transferred from one nation to another, which led to the creation of lex mercatoria, the first phase in the development of modern (international) commercial law. Key words: Commercial law, lex mercatoria

The majority of worldwide concluded commercial contracts are nowadays written in English and based on Anglo-American contract models. This happens regardless of the governing law of the specific contract. When relying on those models, contractual parties often embrace not only the actual wording, but also the contract drafting style typical for common law countries. In this way, common law concepts and rules can be transferred to civil law jurisdictions, however, without certainty about the legal effects. This is especially pertinent to boilerplate provisions. On this background, the article aims to elucidate the influence of American contract law and contract drafting style on Danish contract law and practice, taking the entire agreement (EA) clause as an example. While applying comparative law method, and more specifically taking the departure in various theories on diffusion of law, it aims to investigate the treatment of EA clauses in contracts governed by Danish law and opens up a discussion whether on the example of EA clauses we can observe Americanization of Danish contract law or whether we should rather speak of legal transplants or convergence between American and Danish contract law. The findings suggest that the use of EA clauses in contracts governed by Danish law can indeed be deemed legal transplants, but that it is impossible to identify whether this transplanting process has been successful. For now, the available court decisions from the two jurisdictions dealing with the topic of EA clauses do not show mutual appreciation between the two legal systems, although the results are not as divergent as expected. Therefore, what we are experiencing seems to be convergence or transnationalization of contractual practice rather than contract law. We might thus conclude that the contract drafting process overtakes the judiciary, which is more attached to national rules and values. This does not seem to be the case for Denmark only, but appears to be a common observation in other civil law jurisdictions as well. In line with the irritant perspective on the legal transplants theory, it can then be expected that the contract drafting practice will in turn influence national legal rules and the courts’ approach. This effect can already be seen in Danish legal scholarship and its presumption that the judges will not entirely disregard EA clauses, but take a middle road in interpreting them.

The Need to Remove the Civil Code from Mexican Commercial Laws: the Case of “Offers” and “Firm Promises”

This research examines how cultural values influence the development and structure of commercial law across different societies, addressing the critical question of whether business regulations simply reflect technical economic requirements or embody deeper cultural values about appropriate commercial conduct. The study employs a qualitative methodology based on systematic literature review, analyzing over 200 academic sources from multiple disciplines including law, sociology, anthropology, and economics to identify patterns in how cultural values shape commercial law development. The research utilizes thematic analysis to examine cultural transmission mechanisms and contemporary challenges in cultural-legal interactions within commercial regulatory frameworks. The findings reveal that cultural values serve as fundamental determinants of commercial law structure, influencing property rights concepts, corporate governance frameworks, and regulatory enforcement mechanisms across different societies. The research identifies specific cultural transmission mechanisms including legal education institutions, judicial decision-making processes, professional organizations, and international legal transplantation that embed cultural values within commercial law systems. Contemporary challenges including globalization, digital transformation, and environmental governance create new tensions between universal commercial law principles and culturally specific regulatory approaches. The study concludes that cultural values continue to play a persistent and fundamental role in shaping commercial law development, requiring greater sensitivity to cultural diversity in international commercial regulation and legal harmonization efforts.

The Reform and Harmonization of Commercial Laws in the East African Community The partner states in the East African Community (EAC) have modernized their commercial laws to claim their post-colonial identity and facilitate development. While law reform and the harmonization of laws are both methods of shaping laws, the national law reform programmes in the EAC mainly aim to ensure that the laws reflect the domestic socioeconomic circumstances, in contrast to the harmonization of national commercial laws, which focuses on the attainment of economic development. This article observes that the reformed and harmonized commercial laws in the EAC are mainly legal transplants of the principles of transnational commercial law that have been adapted to meet domestic needs and aspirations.

This paper aims to contribute to the mapping of the precursors of Brazilian Commercial Law through the study of Counselor Salustiano Orlando de Araújo Costa’s comments on the Commercial Code of 1850. It seeks to investigate his role in the historical period in order to identify its repercussions on commercial practice and the formation of Commercial Law doctrine. It was possible to verify that Counselor Orlando’s annotations played a prominent role in nineteenth-century commercial practice following the publication of the Commercial Code of 1850, amidst a scenario characterized by a scarcity of works addressing the new legislation. It was also possible to appreciate the circumstances that led to the decline in the importance of Counselor Orlando’s work, particularly in the face of rising criticism towards the purely exegetical methodology for the elaboration of doctrinal works in Commercial Law, and to identify the circumstances that produced a change in the paradigm of Brazilian legal doctrine.

Abstract-The development and advancement of an industry in trade which is increasingly rapidly influencing the world economy, especially in international trade through exports and imports. The Bill of Lading in Indonesian is known as the "agreement" which is the most important shipping document in the process of shipping goods by sea transportation to reduce responsibility for the risks that will arise in international trade. Bill of Lading (B / L) is one of the important documents of the Letter of Credit (L / C) as a means of payment transactions for exporters and importers. So that the formulation of the problem used: 1) What is the role of the Bill of Lading documents in export-import activities? 2) What is the procedure for applying the Bill of Lading documents in export-import activities? The research method used is the normative legal research method so that the problem approach used is the legislation approach, and conceptual approach, and uses primary, secondary, and tertiary legal materials. So that the legal material collection technique used is the documentation technique by processing and analyzing legal materials that have been collected using legal arguments. The results of this study can be concluded that the regulation of the Bill of Lading (B / L) can be seen through the provisions of Article 506, the Commercial Law (KUHD); Article 25 paragraph (1) of Law No. 39 of 2007 concerning Excise.
 Keywords: Bill of Lading, International Trade, and Letter of Credit.
 
 
 Abstract-The development and advancement of an industry in trade which is increasingly rapidly influencing the world economy, especially in international trade through exports and imports. The Bill of Lading in Indonesian is known as the "agreement" which is the most important shipping document in the process of shipping goods by sea transportation to reduce responsibility for the risks that will arise in international trade. Bill of Lading (B / L) is one of the important documents of the Letter of Credit (L / C) as a means of payment transactions for exporters and importers. So that the formulation of the problem used: 1) What is the role of the Bill of Lading documents in export-import activities? 2) What is the procedure for applying the Bill of Lading documents in export-import activities? The research method used is the normative legal research method so that the problem approach used is the legislation approach, and conceptual approach, and uses primary, secondary, and tertiary legal materials. So that the legal material collection technique used is the documentation technique by processing and analyzing legal materials that have been collected using legal arguments. The results of this study can be concluded that the regulation of the Bill of Lading (B / L) can be seen through the provisions of Article 506, the Commercial Law (KUHD); Article 25 paragraph (1) of Law No. 39 of 2007 concerning Excise.
 Kata Kunci: Bill of Lading, transaksi international, surat kredit