Transnational commercial contracts have become vehicles for the implementation of transnational regulation, giving rise to new contractual architectures combining different logics: international trade and transnational regulation. The logic of commercial exchanges differs from that of regulatory provisions, both in terms of focus and objectives, as follows: (1) commercial exchanges focus mainly on products, whereas regulatory provisions focus mainly on process; (2) the former is often limited to individual transactions, while the latter encompasses a number of linked transactions focusing on the interdependence of contractual relationships along the chain; and (3) the former aims at redressing the victim of the breach, while the latter tries to restore compliance with regulatory process in order to pursue regulatory objectives and deter future violations. Two important conclusions should be drawn. The conventional divide between contract law as a tool aimed at facilitating exchanges and regulation, both public and private, as a tool to address market failures needs to be rethought. The integration within the same contract of commercial and regulatory provisions poses serious challenges to contract scholarship and to the design of international principles of commercial law that should be taken into due consideration by international institutions like UNIDROIT, UNCITRAL and the ICC. On the other hand, transnational regulatory bodies and human rights organizations should be fully aware both of the potential advantages and shortcomings of using contracts as vehicles for the implementation of regulatory standards. This Article would reach its objective if it opens a dialogue on the basis of empirical evidence between areas of scholarships which remain separate by fragile and out-dated conceptual fences: international business transactions and transnational regulation.

The regulatory functions of transnational commercial contracts available: new architectures

Cafaggi, Fabrizio
2013

Abstract

Transnational commercial contracts have become vehicles for the implementation of transnational regulation, giving rise to new contractual architectures combining different logics: international trade and transnational regulation. The logic of commercial exchanges differs from that of regulatory provisions, both in terms of focus and objectives, as follows: (1) commercial exchanges focus mainly on products, whereas regulatory provisions focus mainly on process; (2) the former is often limited to individual transactions, while the latter encompasses a number of linked transactions focusing on the interdependence of contractual relationships along the chain; and (3) the former aims at redressing the victim of the breach, while the latter tries to restore compliance with regulatory process in order to pursue regulatory objectives and deter future violations. Two important conclusions should be drawn. The conventional divide between contract law as a tool aimed at facilitating exchanges and regulation, both public and private, as a tool to address market failures needs to be rethought. The integration within the same contract of commercial and regulatory provisions poses serious challenges to contract scholarship and to the design of international principles of commercial law that should be taken into due consideration by international institutions like UNIDROIT, UNCITRAL and the ICC. On the other hand, transnational regulatory bodies and human rights organizations should be fully aware both of the potential advantages and shortcomings of using contracts as vehicles for the implementation of regulatory standards. This Article would reach its objective if it opens a dialogue on the basis of empirical evidence between areas of scholarships which remain separate by fragile and out-dated conceptual fences: international business transactions and transnational regulation.
Cafaggi, Fabrizio
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11572/123939
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