Private Law Beyond the Nation State
This is the first book in this field translated and published to Persian, contains six choosen articles of Prof. Jürgen Basedow as:
Private Law Beyond the Nation State
Studies on Globalization and Europanization of Private Law
Over the last 20 or 30 years, the world has experienced an unprecedented increase in international exchanges of persons, goods, capital, and data. This process is usually encapsulated in the term of globalization. It is due to major technical changes: the container revolution in the transport of goods, the use of wide-body aircraft in the carriage of passengers, and the internet and satellite communication for the transfer of information including data which are relevant for the capital markets.
Globalization has taken place in a world that has traditionally been ordered by nation states and the law emanating from national legislation. The territorial confinement of the binding force of such laws is less and less suited to the needs of a globalized economy and worldwide exchanges. But the legal system is evolving, too. A growing number of international conventions covering various areas of the law including such diverse subjects as commercial transactions and human rights give evidence of the consciousness of the international community of the need for a global law. A driving force in this process has been the European Community. Established in the aftermath of the Second World War as a mechanism for the economic recovery of Europe, it has turned into a powerful scheme of integration of national markets, of political decision-making processes, and of national laws. Although geographically limited to Europe, it has been accepted in some parts of the world as a model for regional integration that has successfully overcome the national confinement of law.
The process of legislative integration has been closely followed by academics of many European countries, and also by this author. This book contains a selection of some of the articles dealing with essential aspects of that process. A general description of the universal process is contained in the article entitled “Global life, local law? – About the globalization of law and policy-making”. Two articles are dedicated to the integration of private law in the European Community: The paper on “Conflict of laws and the harmonization of substantive private law in the European Union” investigates the increasingly complex interrelation between private international law as the traditional means of solving cross-border conflicts of laws, and the growing body of harmonized or even unified substantive law within the European Community. The numerous state interventions by Community law in the market processes have recently raised the question whether the European markets are still based on the freedom of contract; the article on “Freedom of contract in the European Union” looks for traces of this principle in Community legislation and the case law of the European Court of Justice.
From the very beginning, European integration has been conceived as a process carried forward by private undertakings in the framework of a common market, and the more recent development of the worldwide economy has adopted this principle. While the United States of America enacted laws for the protection of competition in the market as early as 1893 and the European Community followed in 1958, more and more countries have recently turned to an active competition policy. It is the object of two further articles contained in this book: the paper on “Competition policy in a globalized economy: From extraterritorial application to harmonization” describes the development of the laws of some countries during the early years of jurisdictional conflicts towards an era of progressive harmonization of competition law, by uncoordinated national legislation, but also at the regional and perhaps one day at the universal level. The European Community plays an important role in this worldwide development. In recent years it has embarked upon the road towards a complete overhaul of its competition law; this evolution is summarized and criticized in the paper on “The modernization of European competition law: A story of unfinished concepts”.
The territorial confinement of national legislation has been a strong incentive for private economic actors to look for alternatives to state legislation when they have felt the need for an improved legal framework of cross-border transactions. Numerous instruments drafted by private interest groups give evidence of what sometimes is called the new law merchant or lex mercatoria and of a complex interaction between state authorities and private rule makers. The article on “The state’s private law and the economy” describes commercial law as an amalgam of public and private rule making.
These articles have been researched and drafted during the last decade at the Max Planck Institute for Comparative and International Private Law at Hamburg, Germany. The Institute was founded more than 80 years ago, when German authorities, courts and business undertakings felt a great need for information on foreign law and scholarly reflection of private international law shortly after the end of World War I. Established in Berlin in 1926 and evacuated to Tuebingen in World War II, the Institute was relocated to Hamburg in 1957 and has grown to one of the leading research institutions of comparative and international private law in the world ever since. At present, its library is subscribed to more than 2,000 periodicals and contains more than half a million volumes covering the law of virtually all jurisdictions of the world. Hosting more than 200 foreign scholars every year, the Institute has become a major place of networking of the international scholarly community. The research conducted at the Institute by both its academic staff and by its foreign guests is focused on the future development of the legal system in a globalized world that is covered by this book.
Jürgen Basedow, Hamburg
Articles information: ü Global life, local law? About the globalization of law and policy-making, in: Liber Amicorum en homenaje al Profesor Dr. Didier Opertti Badán, Fundación de Cultura Univ., Montevideo 2005, 817 - 833.
ü Conflict of laws and the harmonization of substantive private law in the European Union, in: Liber amicorum Guido Alpa - Private law beyond the national systems, British Institute of International and Comparative Law, London 2007, 168 - 185.
ü Freedom of contract in the European Union, European Review of Private Law 16, 6 (2008), 901 - 923.
ü Competition policy in a globalized economy: from extraterritorial application to harmonisation, Prawo i priwrada (Law and Economy) 2004, 18 - 34.
ü The modernization of European competition law: A story of unfinished concepts, Texas International Law Journal 42, 3 (2007), 429 - 439.
ü The state’s private law and the economy - Commercial law as an amalgam of public and private rule-making, The American Journal of Comparative Law 56, 3 (2008), 703 - 721.
