Reflexive transnational law : the privatisation of civil law and the civilisation of private law

  • The author examines the emergence of a transnational private law in alternative dispute resolution bodies and private norm formulating agencies from a reflexive law perspective. After introducing the concept of reflexive law he applies the idea of law as a communicative system to the ongoing debate on the existence of a New Law Merchant or lex mercatoria. He then discusses some features of international commercial arbitration (e.g. the lack of transparency) which hinder self-reference (autopoiesis) and thus the production of legal certainty in lex mercatoria as an autonomous legal system. He then contrasts these findings with the Domain Name Dispute Resolution System, which as opposed to Lex Mercatoria was rationally planned and highly formally organised by WIPO and ICANN, and which is allowing for self-reference and thus is designed as an autopoietic legal system, albeit with a very limited scope, i.e. the interference of abusive domain name registrations with trademarks (cybersquatting). From the comparison of both examples the author derives some preliminary ideas regarding a theory of reflexive transnational law, suggesting that the established general trend of privatisation of civil law need to be accompanied by a civilisation of private law, i.e. the constitutionalization of transnational private regimes by embedding them into a procedural constitution of freedom.

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Author:Gralf-Peter CalliessORCiDGND
Document Type:Article
Date of Publication (online):2005/09/16
Year of first Publication:2002
Publishing Institution:Universit├Ątsbibliothek Johann Christian Senckenberg
Release Date:2005/09/16
Tag:ICANN UDRP; Lex Mercatoria; Reflexive Law; Transnational Law
Page Number:26
First Page:1
Last Page:26
Zuerst in: Zeitschrift f├╝r Rechtssoziologie, 23.2002, Nr. 2, S. 185-216
Institutes:Rechtswissenschaft / Rechtswissenschaft
Dewey Decimal Classification:3 Sozialwissenschaften / 34 Recht / 340 Recht
Licence (German):License LogoDeutsches Urheberrecht