Globalization is a hybrid and complex process. The legal effects which it creates cannot be explained with a single factual or legal argument such as the proliferation of general contract conditions or the normative value of trade usages. In view of the dramatic changes of the economic and geo-political conditions it requires an interdisciplinary approach1 which takes into account the research of all those sciences which deal with the change of paradigm in international business.
Political scientists regard globalization as the reason for the decline of the "Westphalian" model of international relations which was based on the sovereignty of states2. This corresponds to a new and progressive view of public international law as a "truly transnational law" of global or "supraterritorial" governance which no longer serves to coordinate the relations between individual states but is shaped and developed by the activities of non-governmental organizations (NGOs) and private entities such as multinational corporations3.
National economists have long since observed the development of a "private civil society" in which the states adhere to the principle of "subsidiarity" and leave the regulation of daily affairs to their citizens and intervene only if and to the extent that private self-regulation fails4. In the context of international business, the doctrine of "New International Economics of International Transactions" (NIIT) has been developed. It takes a transaction-oriented approach to international business and deals with the constitutional uncertainties resulting from the territorial limitations of lawmaking and law enforcement and the problems (coordination of economic behavior, increase of transaction costs) arising out of this phenomenon for the property rights exchanged in international trade5. As a consequence of this "law and economics"-approach to decentralized law-making6, the effects of private ordering for the creation of norms by decentralized societal self-organizations are verified by application of game theory and computer modeling techniques7.
Finally, sociologists regard the decentralized law creation through the social group of international businessmen and their institutions (ubi commercium, ibi ius) as an example of "reflexive law", i.e. a law creation process that reacts to the facts and developments of real life instead of imposing on society how life should be8
In all disciplines just mentioned, research is focussed on the same problem: the transfer of rule making powers and organization processes from the state sovereign to private groups, entities, individuals or non-governmental institutions and the "de-formalization" of the norm-creation process that goes along with it.
1See Berger, The Creeping Codification of the Lex Mercatoria, 1999, at 231.
2von Bredow, in: Lutz (ed.), Globalisierung und nationale Souveränität, Festschrift Wilfried Röhrich, 2000, at 159, 161 et seq.
3See Hobe, Archiv des Völkerrechts 1999, at 253, 278 et seq. (public international law as a "transnational law of globalization").
4See generally Böhm, in: Mestmäcker (ed.), Freiheit und Ordnung in der Marktwirtschaft, 1980, at 105 et seq.
5See Schmidtchen/Schmidt-Trenz, Jahrb. Neue Politische Ökonomie 1990, at 3 et seq.
6See Cooter, U.Pa.L.Rev. 1996, at 1643 et seq.; Bernstein, U.Pa.L.Rev. 1996, at 1765 et seq.
7See for a fascinating 'in silico' approach to norm making Picker, Univ.Chic.L.Rev. 1997, at 1225 et seq.
8Teubner, Rechtshistorisches Journal 1996, at 255; Teubner, in: Teubner (ed.), Global Law Without a State, 1997, at 5 et seq.