Volume 42 | Number 3 Summer 2007
V. Conclusion
My argument is that there are legal theories which help explain some aspects of the emergence and adoption of modern transnational commercial law. They cannot explain the full picture by any means. The efforts of bodies like UNCITRAL, UNIDROIT, and the World Bank have at base a concern with solving practical problems in transnational commercial law, particularly where globalisation creates gaps in the ability of national legal systems to solve them. There are many examples, but perhaps the best in recent times is the way the Cape Town Convention addresses a modern problem of how financiers and investors can take effective security over valuable, privately and state-owned mobile property such as aircraft, railway stock, and space assets like satellites. The work of the International Monetary Fund over the years in relation to central banking law—and more recently that of the Basel bodies with respect to the adequate supervision of the financial sector—the core principles for effective bank supervision and the rules for capital adequacy and sound risk management of banks can be seen broadly as motivated by a pragmatic concern with the stability of the international financial system, risk reduction, and efficiency.101 As we have seen, there are examples of standards from the new transnational commercial law suggested for adoption in domestic legal systems, consistent with the rule of law and pro-creditor/pro-debtor models. The World Bank, the International Monetary Fund, and regional development banks like the Asian Development Bank have all been engaged in this work. It is natural to consider carefully international commercial law having its pedigree in such a model. The forces behind the provisions consequently spun off, and their impact may be reasons for pause. Another may be the point already made that however splendid these laws may be “on the books,” they may simply be an illusion of progress if there is not the administrative machinery to give them force in practice. Perhaps most important are social justice issues such as the protection of consumers and employees. If these concerns are addressed, however, it can be strongly argued that important aspects of the new transnational commercial law are as important for the poor as for others. In his book The Mystery of Capital, Professor Hernando de Soto observes that in developing countries, although the poor may have capital such as growing crops or possibly land, it is “dead” economically—it lacks adequate legal protection and, crucially, cannot be used as collateral for credit.102 Access to ready finance is the preserve of the elite. Modern laws relating to credit and security are therefore needed.103 Whether so benign a view of the new transnational commercial law can be taken in general as opposed to this one example, depends in every case on the circumstances. Each measure must be tested not only in terms of its contribution to economic development, but also to social justice.
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Footnotes
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