Peer Zumbansen

Bio: Peer Zumbansen is an academic researcher from McGill University. The author has contributed to research in topics: Corporate governance & Legal pluralism. The author has an hindex of 22, co-authored 136 publications receiving 1597 citations. Previous affiliations of Peer Zumbansen include Goethe University Frankfurt & York University.

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

Transnational Legal Pluralism

Abstract: This paper draws out the analogies and connections between long-standing legal sociological insights into pluralistic legal orders and present concerns with the fragmentation of law outside of the nation state. Within the nation-state, the discovery of legal pluralism inspired a larger contestation of concepts of legal formalism, of the alleged unity of the legal order and of the hierarchy of norms against the background of a consistently advancing process of constitutionalization. This research heightened regulators’ sensitivity to blind spots and exclusionary dynamics in the design of rights, leading inter alia to wide-ranging efforts to render more effective access to justice, legal aid and legal representation. Another important consequence concerned an increased awareness of different levels and sites of norm-creation in various societal areas. Much of this is mirrored by today’s quest for a just, democratic and equitable global legal order, for example in the debate about ‘fragmentation of international law’ or ‘global administrative law’. But, while the legal pluralism debate largely unfolded in the context (and contestation) of relatively mature legal orders and institutions, such institutional frameworks and safeguards are largely absent on the international plane. As a result, the emergence of numerous norm-setting agencies, specialized courts and tribunals and regulatory networks are perceived as obstacles or impediments to the creation of a sound legal order on a global scale, rather than as inherent traits of an evolving legal order.In order to grasp the increasingly transterritorial nature of regulatory governance it is necessary to revisit the arguments in support of legal pluralism and, in particular, the legal pluralist critique of the association of law with the state. On that basis, it becomes possible to read the currently dominant narrative of the ‘end of law’ in an era of globalisation in a different light. Rather than describing the advent of globalisation as an end-point of legal development, the transnational perspective seeks to deconstruct the various law-state associations by understanding the evolution of law in relation and response to the development of ‘world society’. The currently lamented lack of democratic accountability, say, in international economic governance, can then be perceived as a further consequence in a highly differentiated and de-territorialized society. The paper thus rejects the attempts by lawyers to re-align transnational governance actors with traditional concepts of the state or of civil society and, instead, contrasts them with various advances in sociology and anthropology with regard to the evolution of ‘social norms’ and ‘spaces’ of governance and regulation. These perspectives effectively challenge present attempts to conceptualize a hierarchically structured global legal order. This article’s proposed concept of ‘transnational legal pluralism’ [TLP] goes beyond Philip Jessup’s 1956 idea of ‘transnational law’, through which he sought to both complement and challenge Public and Private International Law. TLP brings together insights from legal sociology and legal theory with research on global justice, ethics and regulatory governance to illustrate the transnational nature of law and regulation, always pushing against the various claims to legal unity and hierarchy made over time.

Defining the Space of Transnational Law: Legal Theory, Global Governance & Legal Pluralism

Abstract: Transnational law, since its iteration by Philip Jessup in the 1950s, has inspired a league of scholars to investigate into the scope, doctrine, sources and practice of border-crossing legal regulation. This paper reviews much of this preceding scholarly work and attempts to contextualize it in debates around global governance and global constitutionalism. These debates are no longer confined to international lawyers or political scientists. Together with anthropologists, sociologists, geographers and legal philosophers and legal theorists, these scholars have been significantly widening the scope of their investigation. The current, multi - and interdisciplinary research into the prospects of political sovereignty, democratic governance and legal regulation on a global scale suggests a further continuation of such intellectual bricolage and collaboration. The here presented paper builds on a larger research project into the methodology of transnational law and suggests that we ought to revisit legal sociological insights into the emergence of legal pluralism to make sense of today’s co-evolution of ‘formal’ and ‘informal’, ‘public’ and ‘private’ laws – and social norms.

Transnational Legal Pluralism

Abstract: This paper draws out the analogies and connections between long-standing legal sociological insights into pluralistic legal orders and present concerns regarding the fragmentation of law outside of the nation state. Within the nation state, the discovery of legal pluralism inspired a larger contestation of concepts of legal formalism, of the alleged unity of the legal order and of the hierarchy of norms against the background of a constantly advancing process of constitutionalisation. This research heightened regulators' sensitivity to blind spots and exclusionary dynamics in the design of rights, leading inter alia to wide-ranging efforts to render more effective access to justice, legal aid and legal representation. Another important consequence concerned an increased awareness of different levels and sites of norm creation in various societal areas. Much of this is mirrored by today's quest for a just, democratic and equitable global legal order, for example in debates about ‘fragmentation of i...

Neither ‘Public’ Nor ‘Private’, ‘National’ Nor ‘International’: Transnational Corporate Governance from a Legal Pluralist Perspective

Abstract: The paper is part of a larger research project on transnational private regulation, carried out under the auspices of Hague Institute for the Internationalisation of Law [HiiL] at University College Dublin, the European University Institute and Tilburg University. It addresses the regulatory challenges arising from a fast-growing body of norms produced by non-state actors in the transnational arena. Focusing on the example of corporate governance codes through a legal pluralist lens, the paper investigates the arguments that qualify corporate governance codes as either ‘soft’ law or as non-law and rejects this categorization with reference to the wide-ranging evidence of new forms of regulatory governance both within and outside of the nation-state. The creation of corporate governance codes is seen as example of indirect regulation in politically sensible regulatory areas, where state law makers engage in forms of collaborative norm creation for example in the form of private code drafting and subsequent public endorsement. In the case of the German corporate governance code, however, the drafting of the Code occurred in a non-exclusively private sphere, which raises important questions as to the adequacy of the public-private distinction with regard to the assessment of the existence or the lack of legitimacy of contemporary norm-making processes. This type of norm creation illustrates the challenges of what Calliess and Zumbansen refer to as ‘Rough Consensus and Running Code’, which constitutes a procedural and substantive theory of transnational private law creation.

The Economic Institutions of Capitalism

Abstract: The 2008 crash has left all the established economic doctrines - equilibrium models, real business cycles, disequilibria models - in disarray. Part of the problem is due to Smith’s "veil of ignorance": individuals unknowingly pursue society’s interest and, as a result, have no clue as to the macroeconomic effects of their actions: witness the Keynes and Leontief multipliers, the concept of value added, fiat money, Engel’s law and technical progress, to name but a few of the macrofoundations of microeconomics. A good viewpoint to take bearings anew lies in comparing the post-Great Depression institutions with those emerging from Thatcher and Reagan’s economic policies: deregulation, exogenous vs. endoge- nous money, shadow banking vs. Volcker’s Rule. Very simply, the banks, whose lending determined deposits after Roosevelt, and were a public service became private enterprises whose deposits determine lending. These underlay the great moderation preceding 2006, and the subsequent crash.

Current index to legal periodicals

Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

The Law of Peoples

Abstract: The Law of Peoples John Rawls Harvard 1999 John Rawls, the great political philosopher, has turned his reflections to questions of international justice, much as his philosophical ancestor Kant did toward the end of his career. Indeed, Kant's conception of a "pacific federation" of states in Perpetual Peace is Rawls's acknowledged model for the "realistic utopia" sketched in The Law of Peoples, which expands upon his 1993 essay by the same title (without, however, revising its basic argument). Despite differing philosophical constraints and geopolitical conditions, both Kant and Rawls aim to develop an ideal normative framework for international law that accommodates a measure of realism and rejects the idea of a world-state. Unfortunately, in its uncritical acceptance of so-called "decent hierarchical societies" even at the level of ideal theory, the normative claim of Rawls's Law of Peoples is undermined. This philosophical appeasement, meant to secure perpetual peace in our time through a moderately demanding Law of Peoples that liberal and "decent" hierarchical societies alike can endorse, departs fundamentally from Kant's cosmopolitanism. For Kant, the "First Definitive Article of a Perpetual Peace-as opposed to a temporary interruption of hostilities-is that each member state of the foedus pacif cum must have a republican form of government, which is partly founded upon "the principle of legal equality for everyone (as citizens)." By contrast, Rawls weakens his ideal of international justice to buy the assent of hierarchical societies, which by definition lack equality among citizens, at the price of sacrificing a theoretical basis for justifying reforms of the practices and institutions of these hierarchical societies above a minimal level of decency. Rawls's complex argument begins by extending the original position, in which principles of justice for the basic structure of society are chosen under epistemic constraints that ensure fairness, from a single liberal society to what he calls the Society of Liberal Peoples. In a second step, though still within ideal theory, he argues that the substantive principles comprising the Law of Peoples are also acceptable to decent hierarchical societies, which possess decent consultation hierarchies and common good conceptions of justice. Despite being inegalitarian, decent hierarchical societies do respect basic human rights, allow some dissent, and at least consult with representatives of groups whose members are denied full citizenship rights. …

The Sexual Contract

Abstract: 1. Contracting In. 2. Patriarchal Confusions. 3. Contract, the Individual and Slavery. 4. Genesis, Fathers and the Political Liberty of Sons. 5. Wives, Slaves and Wage-Slaves. 6. Feminism and the Marriage Contract. 7. What's Wrong with Prostitution?