Home | Databases | WorldLII | Search | Feedback Edited Legal Collections Data

Gopalan, Sandeep --- "Demandeur-centricity in Transnational Commercial Law" [2012] ELECD 353; in Andenas, Mads; Andersen, Baasch Camilla (eds), "Theory and Practice of Harmonisation" (Edward Elgar Publishing, 2012)

Book Title: Theory and Practice of Harmonisation

Editor(s): Andenas, Mads; Andersen, Baasch Camilla

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800013

Section: Chapter 9

Section Title: Demandeur-centricity in Transnational Commercial Law

Author(s): Gopalan, Sandeep

Number of pages: 17

Extract:

9. Demandeur-centricity in transnational
commercial law
Sandeep Gopalan1

Theoretical explanations for the structuring of transnational commercial law
agreements are limited by their focus on the state. Given the dispositive nature
of transnational commercial law, this chapter contends that the key actors are
private demandeurs, and that agreements are reflective of their preferences and
relative power. I have explained the limitations of the state-centric approach in
other works,2 and do not elaborate on those arguments here. This chapter will
limit itself to outlining the central claims of the demandeur-centric approach
for the process of creating transnational commercial law. It demonstrates that
agreement design is predicated on two variables ­ bargaining costs and en-
forcement costs. The operation of these variables spawns agreements ranging
from non-convention agreements, which result when demandeurs possess the
ability to strike agreements at low cost and are able to enforce them without
much reliance on state actors, to conventions, which result when bargaining and
enforcement costs are high.
Theories about the design of transnational commercial law agreements have
extensively applied the contract lens, assuming that states mimic private con-
tracting parties and seek to enhance the credibility and enforceability of their
agreements.3 The central players are rational states which act to maximize con-
tractual surplus.4 Putting mutual promises in contract form makes them binding


1
Professor and Head of Department of Law, National University of Ireland,
Maynooth.
2
See Gopalan, S (2008), `A Demandeur-Centric Approach to Regime Design in
Transnational ...