Peer C Zumbansen

• King's College London

This invited commentary offers a number of reflections in response to a recent article by Pierre Legrand. In that article, several frontlines are drawn between what Legrand considers the right and the wrong ways of doing comparative law. The following commentary tries to make sense of both the origin and direction of what oftentimes comes across as...

Despite hundreds of “Rule of Law” projects at the World Bank and a host of research into the foundations and content of the Rule of Law, we are still nowhere near an altogether satisfactory definition. While the Rule of Law is repeatedly being referred to in ‘legal assistance’ and ‘law reform’ projects and lives as a guiding principle in constituti...

Non-state law is playing an increasing role in both public and private ordering. Numerous organizations have emerged alongside the nation-state, each purporting to provide their members with rules and norms to govern their conduct and organize their affairs. The nation-state increasingly finds itself sandwiched, between two broad and contrasting ca...

Transnational private regulatory governance in a host of areas from food and product safety, aviation security, accounting, corporate and labor standards, as well as forestry and marine stewardship has long attracted the attention of those with concern for the public interest. The chapter recognizes these concerns, which are usually expressed in te...

This chapter explores the nature, status and role of knowledge, expertise and epistemology in the context of law & development. Placing a particular emphasis on the way that prior perceptions of the functions of the state influence the conceptualization of development policies, the chapter formulates a critique of approaches to development programs...

In this article, I want to suggest that there is a significant difference between the current interest of law in sociology (anthropology, geography) and the earlier instance of legal sociology. Whereas historically earlier stances responded, in no small degree, to legal positivism and, eventually, to both technological and societal change, the curr...

This chapter is the introduction to the forthcoming edited collection "Law in Transition: Human Rights, Developments and Transitional Justice", edited by the authors and forthcoming with Hart Publishing (Oxford, 2013). The book will appear in the "Osgoode Reader" series and brings together many of the leading experts of the increasingly pertinent i...

The continuing proliferation of transnational private regulatory governance challenges conceptions of legal authority, legitimacy and public regulation of economic activity. The transnational law merchant or, lex mercatoria, is a case in point in this context, as it represents a laboratory for the exploration of “private” contractual governance in...

The continuing proliferation of transnational private regulatory governance challenges conceptions of legal authority, legitimacy and public regulation of economic activity. The pace at which these developments occur is set by a coalescence of multiple regime changes, predominantly in commercial law areas, but also in the field of internet governan...

This paper explores, in an inevitably cursory manner, some of the main challenges facing a legal theory of transnational governance today. In part building on and responding to William Twining’s identification of key problems of law in a global context (2009; 2012), the following essay adopts a two-fold approach. One element is to suggest a concept...

This Article attempts to bridge two discourses—corporate governance and contract governance. Regarding the latter, a group of scholars has recently set out to develop a more comprehensive research agenda to explore the governance dimensions of contractual relations, highlighting the potential of contract theory to develop a more encompassing theory...

Comparative lawyers have for more than a century sought to increase the understanding of ‘foreign’ legal orders and regulatory systems. Despite some never fully resolved methodological questions, great advances have been made in the comparative study of different regulatory areas both in ‘private’ (contract, tort, corporate, labour) and ‘public’ la...

A project seeking to assert and contrast the ‘practice’ of comparative law in distinction from the well-known and longstanding theoretical critique of the field is itself in need to define the meaning of practice. The following chapter, written for a volume edited by Jacco Bomhoff and Maurice Adams, takes up this challenge in two steps. In a first...

This article addresses the non-finite substantial content and formal/institutional fluidity of the concept of governance through a series of investigations from the standpoint of different disciplinary frameworks. It considers the notion that governance depicts more an empty, still-to-be-defined space for conceptual clarification than a clearly ide...

In the spring of 2000, a commission entitled Corporate Governance-Unternehmensführung (corporate management)-Unternehmenskontrolle (Corporate Control)-Modernisierung des Aktienrechts (Modernization of corporate law), made up of a group of selected lawyers and business practitioners from banking and insurance, took up the task of engaging in an in-d...

The field of comparative constitutional law has grown immensely over the past couple of decades. Once a minor and obscure adjunct to the field of domestic constitutional law, comparative constitutional law has now moved front and centre. Driven by the global spread of democratic government and the expansion of international human rights law, the pr...

This chapter is the substantively revised and expanded version of the original contribution to the first edition of the Elgar Encyclopedia of Comparative Law (J. Smits, ed., 2006). It reviews and discusses the theoretical scholarship on the concept of transnational law, going back to Philip Jessup’s introduction of the term in the nineteen-fifties...

This book assembles the works of scholars from around the world, forming a contextual demonstration of the increasing encounters and tensions among legal cultures. In recognizing the lack of consensus on how to define transnational law, the text includes carefully selected works that originally appeared in the German Law Journal in order to help sh...

This introductory chapter begins with a description of the July 2009 conference marking the first decade of the German Law Journal (GLJ). The conference was convened under the title, "The Transnationalization of Legal Cultures," and the resulting discussion underscored two points. First, there was easy consensus that we are living in a transnationa...

This chapter reflects on the legacy of Günter Frankenberg's seminal critique of comparative law theory, "Critical Comparisons," published in 1985, on the occasion of its twentieth anniversary. After a brief reconstruction of the article's main contentions, it is situated within a larger dialogue among comparativists and legal theorists, who are str...

In the last year, John B. Bellinger III, Chief Legal Adviser to the United States Department of State, has been engaging in a dialogue with politicians and legal scholars in European countries. These speeches and public appearances were meant to address the misimpressions, as Mr. Bellinger sees it, that have become prevalent in Europe over the last...

Comparative lawyers have for more than one-hundred years sought to increase the understanding of 'foreign' legal orders and regulatory systems. Despite some never fully resolved methodological questions, great advances have been made in the comparative study of different regulatory areas both in 'private' (contract, tort, corporate, labour) and 'pu...

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 constituti...

The globalization of capital markets since the 1980s has been accompanied by a vigorous debate over the convergence of corporate governance standards around the world towards the shareholder model. But even before the financial and economic crisis of 2008/2009, the dominance of the shareholder model was challenged with regard to persisting divergen...

In this article, the author seeks to contextualize the argument, made by Thomas Schultz, that we should re-examine the autonomy claim in view of Lon Fuller's standards of procedural justice. When discussing the possibility and desirability of arbitral legal orders being autonomous, we should do the following: first, open up the engagement with Lon...

The globalization of capital markets since the 1980s has been accompanied by a vigorous debate over the convergence of corporate governance standards around the world towards the shareholder model. But even before the financial and economic crisis of 2008/2009, the dominance of the shareholder model was challenged with regard to persisting divergen...

The globalization of capital markets since the 1980s has been accompanied by a vigorous debate over the convergence of corporate governance standards around the world towards the shareholder model. But even before the financial and economic crisis of 2008/2009, the dominance of the shareholder model was challenged with regard to persisting divergen...

This paper contends that the challenging nature of the regulation of global corporate conduct requires an adequately differentiated approach towards the identification and analysis of the norms in question. In part I, I review the context of 'state intervention' and 'market self-regulation', in which the current discussion of regulatory responses t...

The following essay is the new introduction for a republication of the conference proceedings of the famous comparative legal theory conference, held in Bremen (Germany) in 1986, between scholars from the Law Schools at Bremen and the University of Wisconsin. The complete proceedings are now being made available - for the first time - online in the...

Over the last two decades, debates over the convergence or persistence of corporate governance systems have deeply engaged the energies of academics, regulators and investors. These debates have encompassed both the structural mechanisms of corporate decision-making, examining where decision-making authority should lie within the company and which...

In this book we’ve brought together contributions from law, economics, sociology and politics in order to evaluate the effects of the shift to shareholder primacy in both the United States and the United Kingdom, in the context of a parallel shift in both countries to an economy in which finance has an increasingly central role. We have made a deci...

Zumbansen and Calliess have done a wonderful job in assembling papers from the leading scholars in the field, who draw on evolutionary approaches for explaining developments in both economics and the law. Anybody interested in issues of institutional change will be inspired by the wealth of ideas and the diversity of perspectives. Stefan Voigt, Uni...

“Critical Legal Thought: An American-German Debate” An Introduction at the Occasion of Its Republication in the German Law Journal 25 Years Later - Volume 12 Issue 1 - Christian Joerges, David M. Trubek, Peer Zumbansen

This paper is part of a larger inquiry into “The Future of Law,” conducted by the Hague Institute for the Internationalisation of Law. The present paper addresses the prospects of development in the area of legal theory. It argues for a fundamental transformation of legal theory in the context of an increasingly interdisciplinary investigation into...

The term governance has made an impressive career in a number of disciplines concerned with regulation, order and law. This chapter draws on insights from legal studies, sociology, political science, anthropology, history and geography to paint a multifaceted picture of existing, competing and complementing approaches to the concept of governance....

Obituary — Cornelia Vismann - Volume 11 Issue 9 - Peer Zumbansen, Russell Miller, Alexandra Kemmerer

Long before the current financial and economic crisis, corporate governance and securities regulation had become part of one of the most interesting and dynamic regulatory areas in law and policy making today. Both areas had been undergoing dramatic transformations over the past 30-40 years, which saw a global expansion of capital markets and a dee...

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 prod...

This paper is the introduction essay to an edited collection entitled “Law, Economics, and Evolutionary Theory”, forthcoming with Edward Elgar. The volume brings together work by legal scholars, economists, historians and sociologists and aims at a critical investigation of the parallel and often competing theoretical architectures of legal and eco...

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 uni...

Legal sociology is in a crisis - or so it is said. The field is not widely represented at Law Faculties today and, the claim goes, is in dire need of a new spirit. Meanwhile, scholars who are working in the area cover a wide array of research questions, ranging from criminology to family law, from urban governance to transitional justice, illustrat...

It is a well-known and much explored fact that capital market regulation has had a larger share of activity and visible success within the process of European integration than the long-standing efforts towards the establishment of harmonized rules in the area of corporate governance. While a unified, harmonized or effective market-wide corporate go...

With considerable regularity, the established and functioning scientific apparatus is able to reshape itself, to confirm or change its course and the respective lenses of observation through the rationalization of themes, trends and through the identification of individuals and groups of scholars who are being associated with these developments. Th...

no abstract available.

After Habermas' Der gespaltene Westen was published in Germany in 2004 to wide acclaim, Polity Press published an English language edition of the book in 2006. The Divided West contains Habermas' recent writings on international law and, particularly, his landmark essay on “The Kantian Project and the Divided West – Does the Constitutionalization o...

This paper analyzes the contemporary emergence of neo-formalist and neo-functionalist approaches to law-making at a time when the state is seeking to reassert, reformulate and reconceptualize its regulatory competence, both domestically and transnationally. While the earlier turn to alternative regulation modes, conceptualized under the heading of...

In situations of military, political or economic transition, the reassessment of the role of law in the transition process becomes a crucial site of a people's or a nation's negotiating the past, present and future. Allusions to a tabula rasa or an annee zero after traumatic collapses of societal order, however, turn into ill-fated attempts to addr...

In the autumn of 2008, at a time of global reconsideration of the role of states in the regulation of markets, the paper uses the reflection on past experiences with the laissez faire state, the interventionist state, the welfare state and the enabling state as institutional crystallization points in an ongoing learning process of regulatory innova...

The authors discuss the decision of the Supreme Court of Canada to approve a plan of arrangement privatizing BCE Inc. over the objections of bondholders. Summarizing the arguments for "shareholder primacy" and debenture covenants delimiting contractual rights against boards and management, they argue that an expanded conception of relational contra...

The present transformation of European corporate governance regulation mirrors the challenges that have been facing the EUs continuously evolving polity, marked by tensions between centralized integration programs on the one hand and Member States embedded capitalisms, path-dependencies and rent-seeking on the other. As longstanding concerns with r...

Law, the State, and Evolutionary Theory: Introduction - Volume 9 Issue 4 - Gralf-Peter Calliess, Peer Zumbansen

This chapter traces the development of the concept of Transnational Law since Philip Jessup's Storrs Lectures at Yale Law School in 1955. Jessup had famously challenged the doctrinal and conceptual boundaries of both public and private international law to suggest that another concept be more adequately suited to capture the myriad normative and tr...

The book under review addresses the complex interaction of hard and soft law, legal-political intervention and social practice and self-regulation, public and private law, and rules of social praxis and behaviour in transnational law. While the increased contractualization of public governance and the growing involvement of private actors in public...

This paper, which selectively focuses on the contested concept of Corporate Social Responsibility [CSR], forms part of a larger research project on the evolution of corporate governance. This research posits the evolution of corporate governance along three historical paradigms: first, the economic/industrial organization paradigm, second, the fina...

Borrowing Constitutional Designs: Constitutional Law in Weimar Germany and the French Fifth Republic. By Cindy Skach. Princeton: Princeton University Press, 2005. 151p. $29.95. Comparative constitutionalism reigns high on the current academic agenda. Political scientists and legal scholars alike have been displaying a heightened interest in the com...

Research in corporate governance and in labour law has been characterized by a disjuncture in the way that scholars in each field are addressing organizational questions related to the business enterprise. While labour has eventually begun to shift perspectives from aspirations to direct employee involvement in firm management, as has been the case...

The book under review, After Enron, edited by John Armour and Joseph McCahery, and published by Hart in 2006, presents an excellent and timely collection of observations of the Enron debacle, provided by some of the most astute and informed scholars, and masterfully integrated by two of the finest academics in this field. The editors, Dr John Armou...

On 23 October 2007, the European Court of Justice handed down its much-awaited Volkswagen decision (Case C-112/2005), following a suit launched by the Commission against the Federal Republic of Germany in 2005. The Volkswagen statute, through which first the Federal government together with the Land (federal state) of Niedersachsen (Lower Saxony),...

On its website “The EU Single Market – Fewer barriers, more opportunities”, the European Commission lists the judgments by the European Court of Justice [ECJ] dealing with the free movement of capital under Art 56 EC Treaty (ex 73b). The latest update of this list is the Court's Volkswagen decision of 23 October 2007 (Case C-112/2005), which the Co...

Contractual governance ranks high on the agenda of contemporary law and policy debate. Contracts as concepts1, tools2 or frameworks3 of societal ordering and self-regulation occupy a central place in fields ranging from individual business agreements to complex, cross-border commercial relations, from standard form contract arrangements to hybrid c...

Research in corporate governance and in labour law has been characterized by a disjuncture in the way that scholars in each field are addressing organizational questions related to the business enterprise. While labour has eventually begun to shift perspectives from aspirations to direct employee involvement in firm management, as has been the case...

This paper focuses on contract law as a central field in contemporary regulatory practice. In recent years, “governance by contract” has emerged as the central concept in the context of privatization, domestic and transnational commercial relations, and law-and-development projects. Meanwhile, as a result of the neo-formalist attack on contract law...

This essay describes an emergent scheme for modernizing the study of law in German universities, creating a structure that is better equipped to address twentyfirst century socio-legal issues and bring legal scholarship to bear on relevant research problems in the social sciences—and vice versa. It is a by-product of efforts by University of Bremen...

This paper engages the concept of transnational law (TL) in a way that goes beyond the by now accustomed usages with regard to the development of legal norms and the observation of legal action across nation-state boundaries, involving both state and nonstate actors. The concept of TL can serve to illustrate a much further-reaching set of developme...

This article takes issue with the longstanding oppositional themes of harmonisation versus regulatory competition in European company law. Instead of embracing one approach over the other in exclusivity, the article draws attention to the persisting mixture of approaches to an emerging European-wide law regulating the business corporation. Against...

The Trail Smelter Arbitrations of 1938 and 1941 still figure as landmark cases in International Environmental law, despite the fact that the debate continues what lessons ought best to be drawn from these proceedings. In the context of contemporary work in the area of transnational corporate activity, wrongful corporate behaviour such as environmen...

From its first line, Günter Frankenberg's article Critical Comparisons , published twenty years ago, leaves no doubt as to its radical claim and aspiration. Nothing short of attempting to “re-think” comparative law, the article sets out to attack many of the dearly held beliefs in the scholarship and practice of comparative law. The beliefs, the hi...

Cases for civil damages that have been brought before Western courts by victims of torture and persecution against states officials or corporations, challenge the principles of state sovereignty and jurisdictional competence. While national courts can in cases of serious crimes hear cases that grow out of acts committed in another country, the same...

On 14 October 2004, the Bundesverfassungsgericht (BVerfG – German Federal Constitutional Court) voided a decision by the Oberlandesgericht (Higher Regional Court) Naumburg, finding a violation of the complainant's rights guaranteed by the Grundgesetz (German Basic Law). The Decision directly addresses both the observation and application of case la...

The book under review addresses the complex interaction of hard and soft law, legal-political intervention and social practice and self-regulation, public and private law, and rules of social praxis and behaviour in transnational law. While the increased contractualization of public governance and the growing involvement of private actors in public...

While the dispute over the past or the future of the welfare state1 has traditionally set off about the proper definition of what characterizes the welfare state,2 today’s attention is aimed at gaining a clearer focus on the reasons for its status as a severely endangered species. Paradoxically, the alleged reason of all worry — globalization — rem...

»Vielmehr bietet [der Kommentar] auf höchstem Niveau eine substantielle Auseinandersetzung mit den Hintergründen, den Zusammenhängen, der Theorie und der Praxis des Grundgesetzes. Besseres lässt sich von einem Verfassungskommentar nicht sagen.“ Herbert Günther Staaatsanzeiger für das Land Hessen 2018 (50), 1494–1495

There is currently a considerable amount of soul-searching underway by scholars on both sides of the Atlantic. For the cosmopolitanites of the academic world, the unpleasant disagreements over policy towards Iraq between Old Europe and the New World were not only unsettling but symptomatic of a more deep-seated disagreement between (former) friends...

In two decisions delivered inFebruary and March 2001, the German FederalConstitutional Court voided the maritalagreements struck between a man and a pregnantwoman on the grounds that they were the productof an inequality of bargaining power betweenthe parties. These findings, involving anapplication of the fundamental rightsprovisions of the German...

In August 2000, Germany’s twin houses of parliament enacted a law establishing a foundation to compensate survivors of the Nazi forced labor program. The Foundation Law was acclaimed as a victory for Holocaust survivors, despite that it sharply limits compensation amounts, denies recovery to some potential claimants, and purports to preclude furthe...

In times of a continuously expanding proliferation of investment and financing possibilities in the hands of banks, investment funds and individual capital investors, particular attention should be paid to the effects that new financial instruments are likely to have not only on concrete financing and investing modes but also on the further develop...

The contemporary search for new forms of international governance, of which the debate around lex mercatoria is but an example, should attentively build on the lessons on public and private ordering learned in the nation state. Sophisticated commercial practices on a transnational scale, while necessitating adaptive and flexible procedures within a...

On May 22, Mr Rolf-Ernst Breuer, until then speaker of the managing board of Deutsche Bank AG (“Bank”), stepped aside to let Mr Josef Ackermann take his place in the small circle of leading managers of Europe's biggest banking institution. Mr Breuer takes the chair of the Bank's supervisory board, as is often practice for the departing Speaker in G...

On 17 September 2001, the Federal Court of Justice (Bundesgerichtshof) handed down a landmark decision regarding liability within corporate groups (“Konzernhaftung”) which is likely to give an entirely new direction to the law in this field. Most notably, the Court held that, in spite of the fact that the case concerned a by now classical example o...