1 - Introduction

Summary

This book explores the historical and contemporary influence of private power in the global political economy. Private commercial actors have over time exercised varying degrees of authority in the generation and enforcement of the laws governing international commercial relations. Today, forces of globalization and privatization are relocating the boundary between private and public authority in international commercial relations and creating new opportunities for private, corporate actors to exercise power and influence. Indeed, this book argues that fundamental transformations in global power and authority are enhancing the significance of the private sphere in both the creation and enforcement of international commercial law. State-based, positivist international law and “public” notions of authority are being combined with or, in some cases, superseded by nonstate law, informal normative structures, and “private” economic power and authority as a new transnational legal order takes shape. Transnational commercial law or the new law merchant is an integral component of this emerging transnational legal order. The new law merchant is variously referred to as transnational economic law (Horn and Schmitthoff, 1982), the law of private international trade (Schmitthoff, 1964 a), and international business law (Schmitthoff, 1961). It is regarded by some as a system of “protolaw” that forms the foundation for an emerging transnational lawmaking community (Teubner, 1997 b) and as part of the “transnationalization of the legal field” which is “a constitutive element of the process of globalization” (Santos, 1995: 268).