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Territoriality of Law and the International Trade Game: Towards a New Institutional Economics of International Transactions

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  • Schmidt-Trenz, Hans-Jörg
  • Schmidtchen, Dieter
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    Abstract

    The conventional theory of international trade is dominated by a model presupposing a legal order that is perfect in its specifications and controllability, binding for all economic agents, no matter their nationality. World order appears to be cosmopolitan in the sense of Kant. An international private law community such as this, however, does not exist. In fact, there is a multitude of legal orders and a territoriality of law, leading to problems largely neglected in the traditional theory of international trade. They are at the heart of what we would like to call the New Institutional Economics of International Transactions (NIEIT) – a research program which started from a monograph published in 1990 (see Schmidt-Trenz 1990). This paper addresses two questions: Which specific problems emerge in contracts and the contracting process because of factors such as the multitude of legal orders and the territoriality of law? What solutions are there to these problems a) on the level of the law, and b) in the shadow of the law or completely independent of it (?private ordering?)? How do they work from an efficiency point of view? We restrict attention to the international exchange of goods. However, the insights gained can be transferred to other types of transactions, such as international finance transactions, direct investment, and investment agreements. --

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    Bibliographic Info

    Paper provided by Saarland University, CSLE - Center for the Study of Law and Economics in its series CSLE Discussion Paper Series with number 2006-06.

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    Date of creation: 2006
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    Handle: RePEc:zbw:csledp:200606

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    Related research

    Keywords: conflict of law; international private law; transaction costs; enforcement of judgements; private ordering;

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    1. Schnitzer, Monika, 1997. "Debt vs. Foreign Direct Investment: The Impact of Sovereign Risk on the Structure of International Capital Flows," CEPR Discussion Papers 1608, C.E.P.R. Discussion Papers.
    2. Kirstein, Roland & Schmidtchen, Dieter, 1997. "Judicial Detection Skill and Contractual Compliance," CSLE Discussion Paper Series 97-07, Saarland University, CSLE - Center for the Study of Law and Economics.
    3. Kronman, Anthony T, 1985. "Contract Law and the State of Nature," Journal of Law, Economics and Organization, Oxford University Press, vol. 1(1), pages 5-32, Spring.
    4. Greif, Avner, 1993. "Contract Enforceability and Economic Institutions in Early Trade: the Maghribi Traders' Coalition," American Economic Review, American Economic Association, vol. 83(3), pages 525-48, June.
    5. Cooter, Robert & Landa, Janet T., 1984. "Personal versus impersonal trade: The size of trading groups and contract law," International Review of Law and Economics, Elsevier, vol. 4(1), pages 15-22, June.
    6. Pomery, John, 1984. "Uncertainty in trade models," Handbook of International Economics, in: R. W. Jones & P. B. Kenen (ed.), Handbook of International Economics, edition 1, volume 1, chapter 9, pages 419-465 Elsevier.
    7. S. Illeris & G. Akehurst, 2002. "Introduction," The Service Industries Journal, Taylor & Francis Journals, vol. 22(1), pages 1-3, January.
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