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Article

Access_open A Law and Economics Approach to Norms in Transnational Commercial Transactions: Incorporation and Internalisation

Journal Erasmus Law Review, Issue 1 2016
Keywords Incorporation and internalisation, transnational commercial transactions, transnational commercial norms
Authors Bo Yuan
AbstractAuthor's information

    In today’s global economy, a noticeable trend is that the traditional state-law-centred legal framework is increasingly challenged by self-regulatory private orders. Commercial norms, commercial arbitration and social sanctions at the international level have become important alternatives to national laws, national courts and legal sanctions at the national level. Consisting of transnational commercial norms, both codified and uncodified, and legal norms, both national and international, a plural regime for the governance of transnational commercial transactions has emerged and developed in the past few decades. This article explores the interaction between various kinds of norms in this regime, identifies the effects of this interaction on the governance of transnational commercial transactions and shows the challenges to this interaction at the current stage. The central argument of this article is that the interaction between social and legal norms, namely incorporation and internalisation, and the three effects derived from incorporation and internalisation, namely systematisation, harmonisation and compliance enhancement, are evident at both the national and international levels. In particular, the emergence of codified transnational commercial norms that are positioned in the middle of the continuum between national legal norms and uncodified transnational commercial norms has brought changes to the interaction within the international dimension. Although the development of codified transnational commercial norms faces several challenges at the moment, it can be expected that these norms will play an increasingly important role in the future governance of transnational commercial transactions.


Bo Yuan
Bo Yuan is a Ph.D. candidate at the Erasmus University Rotterdam, Department of Law and Economics.
Article

Access_open Offer and Acceptance and the Dynamics of Negotiations: Arguments for Contract Theory from Negotiation Studies

Journal Erasmus Law Review, Issue 2 2013
Keywords Contract Formation, Offer and Acceptance, Negotiation, Precontractual, UNIDROIT Principles of International Commercial Contracts
Authors Ekaterina Pannebakker LL.M.
AbstractAuthor's information

    The doctrine of offer and acceptance forms the basis of the rules of contract formation in most western legal systems. However, if parties enter into elaborate negotiations, these rules may become difficult to apply. This paper addresses the application of the doctrine of offer and acceptance to the formation of contract in the context of negotiations. The paper argues that while the doctrine of offer and acceptance is designed to assess the issues related to the substance of the future eventual contract (the substantive constituent of negotiations), these issues overlap within the context of negotiations with the strategic and tactical behaviour of the negotiators (dynamic constituent of negotiations). Analysis of these two constituents can be found in negotiation studies, a field which has developed over the last decades. Using the rules of offer and acceptance of the UNIDROIT Principles of International Commercial Contracts as an example, this paper shows that the demarcation between the substantive and the dynamic constituents of negotiations can be used as the criterion to distinguish between, on the one hand, the documents and conduct forming a contract, and, on the other hand, other precontractual documents and conduct. Furthermore, the paper discusses the possibility of using the structure of negotiation described by negotiation studies as an additional tool in the usual analysis of facts in order to assess the existence of a contract and the moment of contract formation.


Ekaterina Pannebakker LL.M.
PhD candidate, Erasmus School of Law, Erasmus University Rotterdam. I thank Sanne Taekema and Xandra Kramer for their valuable comments on the draft of this article, and the peer reviewers for their suggestions. The usual disclaimer applies.

Gerhard Wagner
Dr. Gerhard Wagner LL.M. is Professor of Fundamentals of Private Law at Erasmus University, Rotterdam, as well as, Professor of German and European Private Law and Civil Procedure at the University of Bonn.
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