The aim of this chapter is twofold. First, it is a comparative study on the potential benefits and limitations of applying fiduciary law in a “hard case.” This analysis is inductive in nature. It aims at contributing to a better understanding of fiduciary law doctrines in both common and civil law jurisdictions. Second, the chapter focuses on specific transnational processes that may shape fiduciary norms. In particular, it analyzes the influence of transnational private ordering on the establishment of fiduciary duties in state law.

This chapter explores the intersection of transnational law with contemporary corporate governance laws and principles. Corporate governance, with its complex array of public and private actors, fits naturally within the modern concept of transnational law as a species of law that "can no longer be viewed through a purely national lens." Financial markets today are global and interconnected and events, such as the 2007-2009 global financial crisis and the COVID-19 crisis, exemplify the risk of contagion across those markets. Not only can corporate governance problems transcend national boundaries, so too can their solutions, which often involve regulatory efforts that operate at a transnational level. The chapter explores, from a transnational perspective, the transmission of laws and norms that are designed to constrain directors’ conduct and enhance corporate accountability. It focuses on two key examples of such accountability mechanisms-fiduciary duties and corporate codes. The chapter examines, for example, the global transmission of corporate governance and shareholder stewardship codes. These codes, which are a relatively recent phenomenon, play an important role as “norm creators.” The chapter assesses the transmission of laws and norms against the backdrop of convergence and path dependence theories of corporate governance.

I argue that transnational law has a formal legal character. To do so, I build on socio-legal scholarship in this domain, but apply a jurisprudential perspective. Specifically, I argue that public fiduciary theory is well-placed to explain the nature of authority evoked by transnational legal orders, as well as their legal features and constitution. This theory claims that the fiduciary character of an organization - that is, its other-regarding purpose and adherence to certain procedural standards - is a necessary feature of its claim to legitimate authority. By addressing these jurisprudential questions, public fiduciary theory contests scholars who deny transnational law’s formal legal character. Ultimately, I argue that despite the private constitution of some transnational lawmaking bodies, and their lack of express public authorization, by fulfilling a transnational fiduciary role they exercise authority that either is or closely resembles public authority. This, in turn, contributes to the legal character of the transnational norms these bodies generate. I use the International Organization for Standardization as an illustrative case study. The implications of this approach include acknowledging that law can exist beyond national or international state regulation, and a denial that coercion is an essential element of law.

Fiduciaries frequently confront transnational situations. Lawyers – an archetypal class of fiduciary – have long counseled participants in cross-border transactions and conducted their own activities transnationally.1 Financial institutions – firms that often act in a fiduciary capacity2 – have provided products transnationally for centuries.3

This chapter will use the historical evolution of fiduciary norms in Japan and East Asia to examine the intersection of fiduciary law and transnational legal ordering theory. Various strands of fiduciary notions arrived in East Asia as part of modernization effort beginning in the late nineteenth century. The civilian regulation of conflicted transactions and duty of care was introduced in Japan, South Korea, and Taiwan as part of Civil Code and Commercial Code, which was followed by statutory introduction of common law trust in early twentieth century, and American corporate governance theory after World War II. Singapore and Hong Kong adopted English common law and equity jurisprudence along with legislations that follow UK and Commonwealth models, which were frequently updated to meet the demands of international financial market. While tensions among common law, civil law, and indigenous norms were conspicuous during the early phases of modernization and reception, more recent decades of globalization have seen greater scale and dynamics of transnational interactions, most notably the rise of UK-style soft law initiative. Throughout the regional history, fiduciary norms have been shaped by shifting colonial pressures and economic hegemony, wars, revolutions, and financial crises, as well as legislative imitation and academic learning. By way of conclusion, this chapter argues that while fiduciary law presents a rich field for exploring process of transnational legal ordering, the theory of transnational legal ordering provides a valuable framework to understand both historical and contemporary evolution of fiduciary law both in individual jurisdictions and across jurisdictional borders.

In recent years, fiduciary law has moved toward the center of scholarly attention in the common law world.1 In spite of its “elusive” nature,2 enough instances of fiduciary relationships occur across a wide variety of legal areas that many – with good cause – describe it as a distinctive field.3 Courts as well as scholars in common law jurisdictions deal concepts and ideas concerning fiduciary law back and forth.4 Although civil law countries have no tradition of the trust as a legal institution,5 courts and scholars alike term relationships based on some kind of personal or professional trust “fiduciary.”6 German law subjects guardians,7 trustees in bankruptcy,8 attorneys,9 and others to a specific set of fiduciary duties, the most important of which is a duty of loyalty.10 France has introduced “la fiducie,” a substitute for the common law trust.11 Indeed, civil law countries have long combined property and contract law in order to fashion substitutes for the common law trust. Contract-based Treuhandverhältnisse – that is, relationships of trust – have been a staple part of the German legal discourse for several decades, if not centuries.12 And in recent years, the trust as a legal institution is gaining ground in civil law jurisdictions, following national recognition of the Hague Trust Convention by countries such as Italy and the Netherlands.13

Particularly in the context of public law, comparative law scholarship typically involves a comparison of legal norms, principles, actors, or legal institutions in different state jurisdictions or across legal traditions. The rise and increasing prevalence of transnational regulators – particularly transnational non-state regulators, but also hybrid and intergovernmental varieties – challenges this methodological default. It invites us to consider the nature of regulation across different legal regimes, some of which might be overlapping, and which, in their claims to authority, might be complementary or conflictual. Acknowledging the presence of transnational regulators within a plurality of legal orders raises questions about how state-centric regulatory institutions at the sub-national, national, regional, or international levels differ from hybrid (state/non-state) and predominantly non-state regimes, whether in terms of their functions (e.g., in terms of standard-setting, enforcement, and dispute resolution) or in terms of their relative claims to authority and political legitimacy. This chapter shows how transnational law poses a conceptual and methodological challenge for comparative lawyers, yet one that reinforces recent innovations in the comparative law field, reflected in this Handbook, that extend comparative law beyond functional comparisons of rules, legal systems, or legal traditions.

The Introduction provides a summary of the central arguments and outlines the chapters of the book.

The literature on international arbitration has been fragmented, because the practice of international arbitration has, for some time, also been fragmented. In the space between the well-established (but relatively isolated) communities of legal practice that operate in the ‘public-law’ arbitration of interstate disputes and the ‘private-law’ arbitration of international business disputes, there has been the relatively recent development of ‘mixed’ investment arbitration that has caused those two legal communities to move closer to one another, and to overlap. This has enabled the consideration of international arbitration and its legal framework as a unified subject of inquiry. In this paper, the author explores the commonalities that this perspective highlights in terms of “sources.”

In the first part of the paper, the author considers the development of the different worlds of international arbitration since the late nineteenth century by dwelling on elements that are often overlooked when the recent story of international arbitration is told. In the second part of the paper the author provides an overview of the potential features, and the hurdles that stand in the way, of a unified representation of international arbitration.

Mongolia’s recent transition to a mineral exporting economy has much to tell us about the relationship between economic change and constitutional transformation. It reveals how the legal construction of markets invite a bevy of transnational economic and legal ‘actors, norms and processes’ which interact with the national constitution. Natural resource extraction, in particular, is charged with the potential to catalyse material constitutional change within the state, by virtue of its profound socio-environmental impacts, the generation of new conflicts over resource control within the state and the exposure of national institutions to transnational investment norms within the context of volatile global commodity markets.

The chapter explains how newly imported ideas faced sharp limits of official interest and perceived commensurability with Late Qing political cosmology, though they did play a role in early diplomatic disputes. While Chinese officials were tentatively exploring a new role for their state in a multilateral world order, however, the jurists of that order were also pondering the world-historical significance of this new “entrant into the Family of Nations” – and the profits to be made from it. It was during these very years in the 1860s–1870s that the field of “international law” in the West took on many of its key subsequent characteristics and a priori assumptions about both itself and the non-Western periphery. China played a major role in that process.

Chapter 1 examines the conceptual and methodological foundations that underlie this volume. Conceptually, it delineates transnational ‘law’ as consisting simply of that collection of transnational institutions and practices with which persons with legal training are increasingly engaged. The purpose of this volume, correspondingly, is to facilitate such engagement: to help the legal actor better understand what to look for and what the implications are of what she finds when she encounters such institutions and practices. Its methodology involves identifying the various ‘facets’ of transnational institutions and practices that are of most interest to persons working from the perspective of law (e.g., regulatory activities, governance structures); exploring how different regulatory regimes structure these facets in different ways so as to serve different regulatory purposes; and investigating how a regime’s structuring of that facet affects what the other facets of that regime can and cannot do effectively and, beyond that, the reach and shape of the regime’s overall legitimacy.

Chapter 8 explores how transnationalization is affecting legal practice. First, it is creating new kinds of commercial law firm, called ‘global law firms’. Global firms are comprised of a geographically and culturally disperse collection of local branch offices, which results in distinctive organizational issues. It is also results in a more complex form of commercial practice, demanding ever greater forms of specialization: this is particularly evident in the revival of the role of in-house counsel, and in new, emerging kinds of legal practice found in the Global South. Globalization is also producing new, global forms of legal advocacy, which pose their own distinct sets of practical and normative issues and challenges depending on the nature of the issue being advanced (such as whether the advocacy is in response to a particular condition or to a particular event; or whether it is seeking to address primarily local injustices or more globally prevalent injustices). Transnational legal practice also gives rise to new issues regarding professional ethics, with different domestic legal regimes addressing these issues in sometimes contradictory ways.

Mary Spiers Williams offers the reader a provocative invitation to reflect on the centring of State law and to critically engage with its impact on First Peoples and more broadly its facilitation of dispossession and its structural bias against First Peoples in Australia. She asks readers to reconsider the nature and authority of law and legal systems transplanted to effect colonisation. Focussing on Australian criminal law, she challenges assumptions about its lawfulness and just–ness, and insists that the reader see its inherent violence against Indigenous people, ways of being and law. This provocative and uncomfortable essay endeavours to create the possibility that readers will gain some insight into Aboriginal Peoples’ perspectives. It does so first by sharing stories of First Peoples experience of state law and their practice of their own law. It also does so by offering another way of understanding what is lawful. Williams asks readers to consider what it might mean to shift their perspectives: what might happen if we assumed that all law derives from Country, not from courts or legislators? and that lawful behaviour, at minimum, requires us to recognise that everyone and everything is interrelated? At base it would require the state to stop claiming the primacy of its law, and to recognise instead, that, in Australia, two laws (First and State) exist under, and are subject to, one law (derived from Country).