[Editor’s Note: Due to its large size the HTML Version of this article – this version – is published in two parts. This is part II/II. The PDF Version is published in one installment]

C. Explaining the Evolution of Transnational Commercial Law in Multi-Level Legal Systems

I. Research Questions from an Evolutionary Economics Perspective

The most important developments about the governance of cross-border transactions can be summarized as follows:[29] The globalization process has led to the development of international and often global markets with the implication of a huge expansion of cross-border transactions with an increasing demand for effective governance of these contracts. So far, the nation states have not succeeded (or even seriously attempted) in establishing a legal order for cross-border transactions that will lead to similar legal certainty as for domestic transactions. The soaring demand for governance of cross-border contracts has been increasingly satisfied by a number of new modes of private governance (e.g., private arbitration). In addition, there are often new combinations of private governance modes with public solutions of the nation states. These “recombinant governance” modes refer both to the combination of private and public governance solutions as well as to the combination with public solutions from different jurisdictions (through choice of law). In any case, the relevance of the public governance solutions of the nation states is considerably reduced in comparison to domestic transactions. Therefore, the evolution of this “transnational commercial law” is also characterized by the generation and diffusion of new forms of governance (legal innovations).

What research questions can be asked about this development from an evolutionary economics perspective?

(1) Why do we have this development to more cross-border transactions? This is the question for the causes of the globalization process itself, which we will not pursue in this article. From an evolutionary economics perspective, this is, on one hand, the consequence of decreasing costs for transportation and communication caused by technological progress in the course of normal economic development. Harder to explain (not only...