Comparative Commercial Law
- Course Code:
- Unit value:
- Taught in:
- Full Year
Objectives and learning outcomes of the course
Globalisation has accentuated the transnational importance of commerce and commercial law. However, domestic commercial legal regimes are still rooted in local, culturally determined attitudes to the facilitation and regulation of commerce. This impacts on legal practice and on efforts to remove difference, such as harmonisation. An understanding of this situation is therefore essential for anyone practising or studying international commercial law, or any other area upon which commerce has an impact, such as economic development.
The objective of this course is to impart such an understanding.
In order to achieve this objective, this course provides a sound basis of knowledge of the foundational concepts of, and the main debates in, comparative law, as they apply to commercial law. More specifically, at the end of the course students should be able to demonstrate:
1. that they have acquired a sound knowledge of the foundation concepts of, and principal debates in, comparative law, that students can recognise comparative law issues when they arise in commercial law and are able to analyse those issues using the conceptual tools of comparative law;
2. that, in so doing, students have developed critical ways of thinking about legal studies - in the case of students with a law background, this will nearly always involve breaking the mould of their socialisation into their municipal system; and
3. that they have acquired a sound knowledge of the application of selected issues in comparative law to the anticipation, recognition and solutions of problems arising from the interaction of different legal cultures in the practice of international commercial law and in particular the essentials of different attitudes to commercial law in selected legal systems.
Scope and syllabus
This is a guided study course and teaching is based on active student participation. You are expected to think for yourself and study independently. Attendance is therefore compulsory at all classes, as is thorough preparation. If you are not adequately prepared, you may be asked to leave, or be marked as absent, or both. It is important to attend the first lecture, when you will be fully briefed on the course requirements.
This teaching method is not to everyone's taste. If you have any doubts or concerns, talk to the course convenor before you register for the course.
Set out below is a representative selection of subjects. Those taught may vary from year to year and may include areas of topical interest not included in this list.
Part I: Comparative Law
(This part of the course is the same as Foundations of Comparative Law 15PLAH031 and students attending the two courses will be taught together.)
- Introduction to Comparative Law Comparative law theory. Uses of comparative law. Comparative law as an academic discipline - a subject or a method.
- Globalisation and Comparative Law.
- Some Fundamental Concepts Regimes, Systems, Cultures, Traditions, Autopoiesis, Path Dependence. Language/Translation (Sapir-Whorf hypothesis); general and legal culture; trans-systemic phenomena.
- Comparative Law Methodology Comparability/commensurability; assumption of similarity/difference? Analysis of different methods; boundary-setting.
- Making Law Similar: Convergence, Harmonisation and Uniformity Defining terms. The problems of diversity and possible solutions. Pros and cons of transnational regimes.
- Legal Diffusion/Infusion The debate on terms. Types: Twining’s ‘Standard Case and Variants’. Issues: Watson and his critics, other views.
- Legal Pluralism Types of pluralism. Causes and effects. Examples.
- Legal Systems Major systems/traditions and spread. Beyond Eurocentric categorisation.
Part II: Application of Comparative Legal Studies to Commercial Law
- Comparative Legal Studies and Commercial Law Evaluating the Instrumentalist and the Contextual Approaches.
- The Application of Selected Areas of Comparative Legal Studies to Commercial Law Globalisation and commercial law; commercial law in terms of systems, general and legal culture, trans-systemic phenomena; harmonisation, transplants and pluralism.
- Providing for the Special Needs of Commercial Law: State and Non-state Methods Needs of commerce and deficiencies of general law; lex mercatoria; comparative analysis of different methods of distinguishing between civil and commercial law.
- Commercial Law in England and France Historical reasons for differences and similarities between English and French approaches to commercial law; spread of English and French ideas; application of comparative legal studies.
- The Chinese Commercial Legal Environment Chinese legal history, general and commercial; development of a modern commercial law post-Mao; application of comparative legal studies.
- The Soviet and Post-Soviet Commercial Legal Environment Soviet ‘commerce’; the reform process and what went wrong.
- Islamic Law and Its Commercial Aspects; The Middle East Commercial Legal Environment Commercial law in the classical shari’a period; its replacement by Western-style systems; resurgence and transformation in the Law of Islamic Finance.
- Another Geographical Area or Topic Depending on the availability of instructors, an alternative geographical area or topic may be presented. Possible examples include African Commercial Law, OHADA Harmonisation.
- Case-study A selected topic in comparative commercial law (if time allows).
Students may not take both this course and Foundations of Comparative Law (15PLAH031).
Students who have taken International and Comparative Commercial Transactions (15PLAC114) may not take this course or Foundations of Comparative Law (15PLAH031).
Method of assessment
Assessment weighting: 50% unseen written examination, 50% coursework (one 1000 essay - 10%, one 6000 word essay - 40%). Only the 6000 word essay may be resubmitted.