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RULES AND NETWORKS Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW General Editors William L.F. Felstiner Eve Darian-Smith Board of General Editors Johannes Feest Peter Fitzpatrick Hazel Genn Eliane Junqueira Hubert Rottleuthner Ronen Shamir Titles in this Series Totalitarian and Post-Totalitarian Law Edited by Adam Podgorecki and Vittorio Olgiati Foreign Courts: Civil Litigation in Foreign Legal Cultures Edited by Volkmar Gessner Family Law and Family Policy in the New Europe Edited by Jacek Kurczewski and Mavis Maclean Procedural Justice Edited by Klaus F. Röhl and Stefan Machura Emerging Legal Certainty: Empirical Studies on the Globalization of Law Edited by Volkmar Gessner and Ali Cem Budak Prison Labour: Salvation or Slavery Edited by Dirk van Zyl Smit and Frieder Dünkel European Democracies Against Terrorism Edited by Fernando Reinares (ALL THE ABOVE TITLES PUBLISHED BY ASHGATE) Social Dynamics of Crime and Control: New Theories for a World in Transition Edited by Susanne Karstedt and Kai-D Bussmann Criminal Policy in Transition Edited by Penny Green and Andrew Rutherford Making Law for Families Edited by Mavis Maclean Poverty and the Law Edited by Peter Robson and Asbjørn Kjønstad Adapting Legal Cultures Edited by David Nelken and Johannes Feest Rethinking Law, Society and Governance: Foucault’s Bequest Edited by Gary Wickham and George Pavlich Rules and Networks The Legal Culture of Global Business Transactions Edited by RICHARD P. APPELBAUM WILLIAM L.F. FELSTINER VOLKMAR GESSNER OÑATI INTERNATIONAL SERIES IN LAW AND SOCIETY A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW OXFORD – PORTLAND OREGON 2001 Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA Distributed in the Netherlands, Belgium and Luxembourg by Intersentia, Churchillaan 108 B2900 Schoten Antwerpen Belgium © The Oñati I.I.S.L. 2001 Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail: [email protected] WEBSITE: http//www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1–84113–295–0 (cloth) 1–84113–296–9 (paper) Typeset by Hope Services (Abingdon) Ltd. Printed and bound in Great Britain on acid-free paper by Biddles Ltd, www.biddles.co.uk Series Editor’s Foreword Business transactions across national borders in contemporary life face both new challenges and those that have confronted domestic exchanges for centuries. Though there continues to be concern with problems of trust, predictability and dispute processing, there are new hurdles imposed by the speed and volume of business in the modern world. This book explores the roles that various institutions play in making international business transactions pos- sible, institutions that partially substitute for national law and legal institutions in the case of domestic exchanges. In this effort, it focuses on the capacities and limitations of international law, the private law of business sectors (lex mercatoria), international law firms, and personal networks as well as high- lighting the continuing relevance of national law. It is the first sustained effort to explore this territory simultaneously from the perspectives of legal reasoning, formal law, empirical sociology, economics and relational anthropology. The contributions to this book, by leading scholars in these fields, are an important first step in developing an interdisciplinary discourse on the globalisation of law. The book is the product of a workshop held at the International Institute for the Sociology of Law (IISL) in Oñati, Spain. The IISL is a partnership between the Research Committee on the Sociology of Law and the Basque Government. For more than a decade it has conducted an international master’s programme in the sociology of law and hosted hundreds of workshops devoted to sociolegal studies. It maintains an extensive sociolegal library open to scholars from any country and any relevant discipline. Detailed information about the IISL can be found at www.iisj.es. This book is the most recent publication in the Oñati International Series in Law and Society, a series that publishes the best manuscripts produced from Oñati workshops conducted in English. A similar series, Coleccion Oñati: Derecho Y Sociedad, is published in Spanish. Eve Darian-Smith Preface This book addresses the theme of global business transactions from an inter disciplinary point of view. It grew out of research at the Center for European Legal Policy at the University of Bremen, Germany, and at the University of California, Santa Barbara, USA. The three editors all had strong interest in issues currently discussed in the area of the globalisation of law and convened to contribute their common socio-legal and empirical background to the debate. Together with other activities and publications a workshop was held at the International Institute for the Sociology of Law (IISL) in Oñati, Spain, in June 1999. The initial papers were heavily debated and discussed at the work- shop, finally evolving into the chapters of this book. We are indebted to the Volkswagen Foundation for supporting the conference as part of Volkmar Gessner’s project on “Global Legal Interaction,” to Malen Gordoa Mendizabal and the Oñati Institute for providing excellent staff assistance and a highly supportive and lovely atmosphere for the conference, and to Diane Johnson for here tireless assistance in preparing the manuscripts. We also wish to acknowledge the helpful comments of two unknown reviewers for Hart Publishing, as well as the fine editorial support of Richard Hart, Jane Parker and Hannah Young at Hart. And finally, we wish to thank the authors of the chapters in this volume for providing stimulating discussion at the original conference, and responding to our suggestions for strengthening their final contributions. Richard P Appelbaum William L F Felstiner Volkmar Gessner Contents List of Contributors ix Introduction: The Legal Culture of Global Business Transactions Volkmar Gessner, Richard P. Appelbaum, William L. F. Felstiner 1 PART ONE: THE NEW GLOBAL ENVIRONMENT OF BUSINESS TRANSACTIONS 1. Sovereignty and Law in a Denationalised World Michael Zürn 39 2. The Institutional Structuring of Business Transactions Richard Whitley 73 PART TWO: THE ROLE OF LEGAL RULES: STATE LAW AND UNIFIED LAW 3. Global Law in Our High Speed Economy William E. Scheuerman 103 4. Traditional Private and Commercial Law Rules under the Pressure of Global Transactions: The Role for an International Order Dieter Martiny 123 PART THREE: THE ROLE OF AUTONOMOUS RULES: THE NEW LEX MERCATORIA AND SELF-REGULATION 5. Lex Mercatoria (New Law Merchant): Globalisation and International Self-Regulation Filip De Ly 159 6. Lex Mercatoria—Critical Comments on a Tricky Topic Felix Dasser 189 7. Global Markets, New Games, New Rules: The Challenge of International Private Governance Franco Furger 201 x Contents PART FOUR: THE ROLE OF THE LEGAL PROFESSION: MEGA-LAWYERS AND IN-HOUSE COUNSEL 8. Capital Markets: Those Who Can and Cannot Do the Purest Global Law Markets John Flood 249 9. The Role of Global Law Firms in Constructing or Obstructing a Transitional Regime of Labour Law Harry Arthurs 273 10. Oil Lawyers and the Globalisation of the Venezuelan Oil Industry Rogelio Pérez Perdomo 301 PART FIVE: THE ROLE OF BUSINESS NETWORKS: RELATIONISM AND GUANXI 11. Social Logic as Business Logic: Guanxi, Trustworthiness, and the Embeddedness of Chinese Business Practices Wai-Keung Chung and Gary G. Hamilton 325 12. Coasean Foundations of a Unified Theory of Western and Chinese Contractual Practices and Economic Organisations Janet Tai Landa 347 13. Understanding Chinese Legal and Business Norms: A Comment on Janet Tai Landa’s Chapter John K. M. Ohnesorge 363 14. A Brief Note on Guanxi Tai-lok Lui 385 15. Comment on Ohnesorge and Lui Janet Tai Landa 399 16. Settling Business Disputes with China Jerome A. Cohen 403 Index 421 List of Contributors Richard P. Appelbaum is Professor of Sociology and Global & International Studies, and Director of the Institute for Social, Behavioral, and Economic Research at the University of California, Santa Barbara. His address is Department of Sociology, UCSB, Santa Barbara, CA 93106, USA. His e-mail address is [email protected]. Harry Arthurs is a University Professor of Law and Political Science, and President Emeritus, of York University. His address is Osgoode Hall Law School, York University, 4700 Keele Street, Toronto M3J 1P3, Canada. His e- mail address is [email protected]. Wai-Keung Chung is a Ph.D. Candidate in the Department of Sociology at the University of Washington, Seattle. His address is Department of Sociology, University of Washington, Seattle, WA 98195, USA. His e-mail address is [email protected]. Jerome A. Cohen is Professor of Law at New York University, Adjunct Senior Fellow at the Council on Foreign Relations and Of Counsel at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison. His address is New York University School of Law, 40 Washington Square South, New York, NY 10012, USA. His e-mail address is [email protected]. Felix Dasser is Privatdozent at the University of Zurich for private law, conflicts of law and private comparative law. He is practising law at Homburger Rechtsanwälte, Zurich, specialising in international commercial arbitration. His address is Weinberg str. 56/58, 8006 Zurich, CH. His e-mail address is [email protected]. Filip De Ly, LL.M (Harvard 1983) is professor of private international law and comparative law at the Faculty of Law of the Erasmus University Rotterdam. His address is POB 1738, 3000 DR Rotterdam, The Netherlands.

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