Dalhuisen on transnational and comparative commercial, financial and trade law. Volume 1 : the transnationalisation of commercial and financial law. the new Lex Mercatoria and its sources / Jan H. Dalhuisen.

Format:

Book

Author/Creator:

Dalhuisen, J. H. (Jan Hendrik), author.

Language:

English

Subjects (All):

Contracts (International law).

Property.

Commercial law.

Physical Description:

1 online resource (527 pages)

Edition:

Eighth edition.

Distribution:

[London, England] : Bloomsbury Publishing, 2022

Other Title:

Transnationalisation of commercial and financial law

Place of Publication:

London [England] : Hart Publishing, 2022

Summary:

"This is a big book, with big themes and an author with the necessary experience to back them up... Full of insights as to the theories that underlie the rules governing contract, property and security, it is an important contribution to the law of international commerce and finance." ( Law Quarterly Review ) Volume 1 of this new edition covers the roots and foundations of private law, the different origins, structure, and orientation of civil and common law, and the social and cultural forces behind it. It analyses the practical needs and market forces behind the emergence of a new transnational commercial and financial legal order, its international finance-driven impulses, concepts, and operation; the theoretical basis of the transnationalisation of the law in the professional sphere in that order; the autonomous sources of the new law merchant or modern lex mercatoria derived from the method of public international law, as well as its relationship to domestic and transnational public policy and public order requirements. The complete set in this magisterial work is made up of 6 volumes. Used independently, each volume allows the reader to delve into a particular topic. Alternatively, all volumes can be read together for a comprehensive overview of transnational comparative commercial, financial and trade law.

Contents:

Cover

Dedication

Title Page

Preface

Contents

Table of Cases

Table of Legislation and Related Documents

Part I The Emergence of the Modern Lex Mercatoria, its Method, Structure and Antecedents. Civil or Common Law Thinking?

1.1. Introduction

1.1.1. The Place and Evolution of Modern Commercial and Financial Law in Civil and Common Law. The Concept of Transnationalisation

1.1.2. Civil Law in Commerce and Finance

1.1.3. The Common Law in Commerce and Finance

1.1.4. The Transnationalisation of Commercial and Financial Law: Common or Civil Law Approach? Methodology and Definition. The Spokesperson Function and the Question of the Public Interest and its Representation at the Transnational Level

1.1.5. The Coverage of Domestic and Transnational Commercial and Financial Law

1.1.6. Legal Dynamism as a Key Notion in Transnational Commercial and Financial Law. Law Among Professionals in Modern Contract and Movable Property. Issues of Liquidity, Finality, and Risk Management

1.1.7. Legal Pragmatism at the Transnational Level. Notions of Certainty, Finality and Predictability. The Need to Find Structure, Not System

1.1.8. Social, Economic, Intellectual, or Democratic Legitimacy

1.1.9. The Traditional Civil and Common Law Notions of Commercial Law. The Notion of Commerciality

1.1.10. Old and New Commercial and Financial Law. Internationality and a Transnational Notion of Professionality. A Separate Legal Order for Professional Dealings?

1.1.11. The Role and Status of International Commercial Arbitration. The Notions of Internationality and Commerciality Revisited

1.1.12. International Arbitration and the Role of Ordinary Commercial Courts Compared. Need for an International Commercial Court?

1.1.13. Structure of this Volume.

1.2. The Origin of Civil Law. Its Traditional Approach to Law Formation and to the Operation of Private Law. Effect on Commercial and Financial Law

1.2.1. Introduction

1.2.2. The Early Developments of Private Law on the European Continent. Roman Law

1.2.3. Classical Roman Law and the Corpus Iuris Civilis

1.2.4. The Revival of Roman Law in Western Europe: The Ius Commune

1.2.5. The Ius Commune and its Relationship to Local Laws Including Newer Commercial Law

1.2.6. The Early Notion of Natural Law in Europe

1.2.7. The Emergence of the Secular Natural Law School: Grotius's De Iure Belli ac Pacis, its Approach and Impact

1.2.8. The Status of State Law in the Philosophies of Grotius, Hobbes, Pufendorf, Locke, Kant and Hegel. The Impact of the Age of Enlightenment and the Road to Codification of Private Law in France

1.2.9. The German Pandectists and the Historical School. German Idealism and the Road to Private Law Codification in Germany

1.2.10. The Civil Law National Codifications and their Coverage

1.2.11. Nationalism and System Thinking. The Question of the Continued Relevance of the Civil Law Codification Idea

1.2.12. Modern Policy Arguments in Favour of a Statist and Static Attitude Towards the Formation of Private Law. System Thinking and its Deficiency. Misunderstandings Concerning Democratic Legitimacy and Certainty

1.2.13. Interpretation and System Thinking in Civil Law: Begriffs- and Interessenjurisprudenz, Freirechtslehre and Wertungsjurisprudenz in Germany. Modern Hermeneutics and the Role of Case Law and Precedent in Civil Law

1.2.14. The Decline of Private Law in Civil Law Countries? The Codification Idea and Business Law in Europe after Brexit

1.3. The Origin and Evolution of the Common Law. Its Approach to Law, Private Law Formation and Operation

1.3.1. Common Law and Equity.

1.3.2. The Common Law Approach to Scholarship

1.3.3. The Common Law Approach to Precedent, Legislation or Codification, and Statutory Interpretation

1.3.4. Intellectualisation and Conceptualisation in Common Law. Modern American Academic Attitudes Towards the Law and its Development: Legal Formalism and Realism

1.3.5. Post-realism or Legal Functionalism in the US: The 'Law and …' Movements

1.3.6. The Progress So Far. Legislature, Judiciary and Legal Practice. The Autonomy and Independence of Legal Scholarship in the US. Doctrinal Scepticism

1.3.7. The Quest for Modernity, the Problems in the Post-modern Era. The Attitude to and Effects on Law Formation and Operation

1.4. The Sources of Law in the Civil and Common Law Tradition. The Approach in Transnational Private Law and the Hierarchy of Sources of Law and their Norms in the Modern Lex Mercatoria

1.4.1. Statutory and Other Sources of Law. Nationalism and System Thinking in Civil and Common Law

1.4.2. Fact and Law Finding in Civil and Common Law

1.4.3. The Revival of the Traditional Sources of Law through Liberal Interpretation Techniques in Civil Law. The Changing Status and Role of Legal Reasoning and Precedent

1.4.4. Survival of Transnational Legal Sources in Commercial Law. EU and Public International Law Attitudes

1.4.5. The Method of Public International Law and its Meaning and Importance for the Development of the Modern Lex Mercatoria

1.4.6. Autonomous Legal Sources: Fundamental Principle

1.4.7. Autonomous Legal Sources: General Principles

1.4.8. Autonomous Legal Sources: Custom and Practices

1.4.9. The Competition between Custom and Statutory or Treaty Law. The Issue of Desuetude and the Relevance of the Good Faith Notion

1.4.10. Autonomous Legal Sources: Party Autonomy

1.4.11. Autonomous Legal Sources: Treaty Law.

1.4.12. Uniform (Treaty) Law and Private International Law

1.4.13. Domestic Laws as Autonomous Residual Source of Transnational Law

1.4.14. The Hierarchy of the Sources of Law in Transnational Commercial and Financial Law or the Modern Lex Mercatoria. The Meaning of the Choice of a Domestic Law by the Parties

1.4.15. Treaty Law and its Own Concept of its Place Among the Other Sources of Private Law

1.4.16. The Concept of Natural Law and the Legal Status and Force of Fundamental and General Principle in the Modern Lex Mercatoria

1.4.17. An End to the Confining Views of Legal Positivism, Formalism, and Nationalism in the Professional Sphere?

1.4.18. Dispute Prevention or Dispute Resolution? Law in Action or Law in Litigation

1.4.19. The Development of the Modern Lex Mercatoria and Role of National Courts and International Commercial Arbitration

1.4.20. Agents of International Convergence and Harmonisation: The Role of UNIDROIT, UNCITRAL, the ICC, The Hague Conference, and the American Law Institute and Commissioners on Uniform State Laws in the US

1.4.21. EU Attempts at Harmonising Private Law

1.5. Different Legal Orders, their Manifestation, and the Competition between them. Cultural, Sociological and Economic Undercurrents in the Formation of Transnational Commercial and Financial Law (Modern Lex Mercatoria)

1.5.1. The Concept of Legal Orders, their Manifestation

1.5.2. Law as Cultural Manifestation

1.5.3. Law as a Political Organisational Tool. The Importance of Diversity, Group Autonomy, Democracy, Rule of Law, and Human Rights

1.5.4. The American Experiences and the Effect on Law Formation

1.5.5. The Revival of Legal Universalism in Professional Private Law

1.5.6. Sociological and Economic Considerations in the Law.

1.5.7. The Formation of Non-statist Law in Modern Social and Economic Thinking. The Promotion of Self-interest and its Limits and the Role of Game Theory

1.5.8. The Competition between Transnational Law and Mandatory State Laws or National Public Policies and Public Order Requirements. The Transnational Minimum Standards

1.5.9. The Operation of Different Legal Orders in Private Law: Evolution of a US Federal Commercial Law, of Transnational Private Law Concepts in the EU, and of International Human Rights Law in the Council of Europe (European Court of Human Rights)

1.5.10. The International Commercial and Financial Legal Order: The Role of Legal Theory, Legal History and Comparative Law

Part II The Nature, Status and Function of Private International Law

2.1. Modern Private International Law

2.1.1. The Underlying Concept of Modern Private International Law

2.1.2. Earlier Approaches

2.1.3. Drawbacks of the Modern Conflicts Rules

2.2. The Modern European and US Approaches to Conflicts of Law

2.2.1. Refinement of the European Model of Private International Law

2.2.2. Developments in the US

2.2.3. The Various Modern US Conflicts Theories

2.2.4. The European Approach: Exception Clauses, Reasonable and Fair Solutions in Dutch Proposals

2.2.5. The Role of Practitioners. Emphasis on Facts Rather than on Rules: The Nature of the Relationship of the Parties and the Nature of the Transaction Distinguished. The Effects of Transnationalisation

2.2.6. The Issue of Public Policy or Governmental Interests and its Impact. The Notion of Comity and its Application. The Development and Operation of International Minimum Standards

2.2.7. States as Counterparties de Iure Imperii.

2.2.8. Practical Issues Concerning Conflicting Public Policies: Effect on the Lex Mercatoria and the Importance of the Notion of Forum non Conveniens.

Other Format:

Print version: Dalhuisen, Jan H. Dalhuisen on Transnational and Comparative Commercial, Financial and Trade Law Volume 1

ISBN:

9781509949199

1509949194

1-5099-4921-6

OCLC:

1291219897