A DEMANDEUR-CENTRIC APPROACH TO REGIME DESIGN IN TRANSNATIONAL COMMERCIAL LAW

摘要

Recent scholarship on international agreement design has almost exclusively focused on the public international law area. The literature on regime design in the area of international private law lacks a solid theoretical foundation. Academic writing on public international law's state-centric approach is only amenable to crude transplantation and poses several puzzles in the international private law context. Resolving these puzzles is important because of the proliferation of transnational commercial agreements in areas that were traditionally the province of domestic law. This paper attempts to provide a starting point to address this theoretical vacuum. Part II argues that functionalist, liberal, and realist theories cannot fully explain transnational commercial law agreement design. Part III puts forth a demandeur-centric approach with the aid of examples that span the spectrum from hard law to soft law. Part IV concludes that agreement design in transnational commercial law is premised on demandeur preferences and relative power. Ultimately, the choice of structure boils down to which parties are the demandeurs of the agreement. All else being equal, when the demandeurs are confident in their ability to achieve agreement, and enforcement requires minimal state involvement, they will opt for non-convention vehicles. The choice of the convention form is predicated on their ability to co-opt states, when enforcement power is necessary.