Peer Zumbansen

Spaces and Places: A Systems Theory Approach to Regulatory Competition in European Company Law

This article takes issue with the longstanding oppositional themes of harmonisation versus regulatory competition in European company law. Instead of embracing one approach over the other in exclusivity, the article draws attention to the persisting mixture of approaches to an emerging European-wide law regulating the business corporation. Against the background of an ongoing struggle over identifying the goals and taboos of the European legislators mandate in regulating the company, the argument put forward here is that this very struggle is reflective of the nature of the evolution of company law in an integrating Europe and a globalising world. European attempts of developing European company law as part of a larger initiative of improving the Unions potential for innovation and competition are thus likely to meet with the challenges that contemporary Nation States are facing when adapting their modes of regulation and representation to the demands of an increasingly complex and decentralised fields of market activities. Situating the law of the business corporation within the larger theme of European integration on the one hand, and of issues of market regulation, domestic, transnational, and international, on the other, suggests the adoption of a systems theory-based approach to understanding the boundaries of law in this multilevel and multipolar process.

The Embedded Firm: Corporate Governance, Labor, and Finance Capitalism

This paper constitutes the introduction to an edited collection, THE EMBEDDED FIRM: LABOR, CORPORATE GOVERNANCE AND FINANCE CAPITALISM (Cambridge University Press, 2011). This book brings together contributions from law, economics, sociology and politics in order to evaluate the effects of the shift to shareholder primacy in both the United States and the United Kingdom, in the context of an increasingly financialized economy. Contributors include Ruth Aguilera, William Allen, Harry Arthurs, Blanaid Clark, Mary Condon, Simon Deakin, Sandy Jacoby, William Lazonick, Sue Konzelmann, Dalia Tsuk Mitchell, Larry Mitchell, Frank Wilkinson, and the editors Cynthia Williams and Peer Zumbansen, among others. The book emphasizes empirical evidence, in conjunction with theory, in conscious rejection of the oft- stated view that “it takes a theory to beat a theory.” For in evaluating the empirical effects of these decades-long trends, in light of the on-going global financial and economic crises - crises propagated from the United States - the problems inherent in American-style corporate governance have become manifest. Such problems do not only concern corporate governance, since the shareholder wealth maximizing norm in the United States is embedded within economic and political institutions stripped of many social democratic norms and policies and with an increasing tendency towards deregulation. But the book demonstrates that the result of shareholder primacy, in conjunction with neo-liberal economic and political norms, has been increasing economic volatility and inequality, systemic fragility, and financial risk that is increasingly being transferred to individuals to manage, given the collapse of many collective bargaining agreements and collective arrangements for pensions. The congruence of theory and evidence suggesting weaknesses in shareholder driven corporate governance as expressed in the U.S. and U.K. give rise to questions of how policy and research can best be harnessed to develop more stable systems of corporate governance, and how these goals may best be aligned with government policy. Since it is naive to think that continental European stakeholder systems, also under pressure, could be transplanted into the United States or the United Kingdom by legislative fiat, the book concludes with suggestions for research and policy development to address the instabilities shareholder corporate governance systems create, while still relying upon existing models within liberal market economies.

Foreword: Liberalism’s global mirror: Worldwide contracting and ‘no alternative’?

This short essay introduces a set of timely critiques of the power shifts in global contracting. The chapters range from investment disputes and carbon trading, commercial arbitration and private military companies to cotton trading and global value chains. In a global context of a ‘turn to market’ through large-scale privatizing of former state-controlled services, outsourcing government functions to private providers and the growing hunger to finance new initiatives through foreign direct investment, contracting has been consolidated as the dominant governance mechanism. Contracts govern investment flows, supply chains, land acquisition, infrastructure development and environmental governance, military activities and commercial arbitration. The triumphant rise of contract prompts urgent questions into the institutional and procedural framework in which the new world of ‘transnational private regulatory governance’ is embedded. Indeed, its promise of a brave new world ‘after the state’ sounds hollow. But, what guidance can we hope to gain from principles such as the Rule of Law or from nation-state bound experiences with ‘deliberative democracy’? As the aftershocks of Brexit continue to rock European political establishments, it becomes quite obvious how the ‘contracting of everything’ might have gone just too far – as long as a critical democratic-political discourse fails to reach out, integrate and empower and as long as today’s political institutional infrastructures continue to grow further and further apart from those under their care and who have suffered the most from the turn to market.

Law and Legal Pluralism: Hybridity in Transnational Governance

The paper takes the currently much belabored concepts of “global governance” and “global constitutionalism” as starting points to ask what they can teach us about the role and function of law today. Suggesting that we take a greater interest in how governance conflicts today must be addressed from a host of national, international, hard and soft “law” norms, disseminated and administered by actors on different levels and often with “non-state” law-making authority, the paper points to the need to see legal norms as part of an evolving regulatory landscape that can best be described as transnational. In light of the shifts and the interesting new forms of co-existence and cooperation between state and non-state actors in the production of transnational norms, it becomes more and more obvious that law, legal theory as well as the sociology of law are part of a more comprehensive and multidisciplinary engagement with the institutional and normative challenges arising in the global context.

Transitional Justice in a Transnational World: The Ambiguous Role of Law

In situations of military, political or economic transition, the reassessment of the role of law in the transition process becomes a crucial site of a peoples or a nations negotiating the past, present and future. Allusions to a tabula rasa or an annee zero after traumatic collapses of societal order, however, turn into ill-fated attempts to address the challenges of confronting the past when building the future. The laws concern with nations that struggle with transition expresses itself through hybrid concepts such as transitional or post-conflict justice, restorative justice, or reconciliation. This paper revisits these instantiations and places them in the context of an increasingly transnational discourse on transitional justice. In light of the wealth of law and non-law responses to past injustice around the world today, transitional justice emerges as a form of transnational legal pluralism, highlighting the parallels of regulatory challenges confronting transition and established regimes alike.

Why Global Law is Transnational: Remarks on the Symposium around William Twining's Montesquieu Lecture

(2013). Why Global Law is Transnational. Transnational Legal Theory: Vol. 4, No. 4, pp. 463-475.

Law, Economics and Evolutionary Theory

Contents: Foreword Law, Economics and Evolutionary Theory: State of the Art and Interdisciplinary Perspectives Peer Zumbansen and Gralf-Peter Calliess PART I: EVOLUTIONARY THEORY AND HISTORICAL TRAJECTORIES 1. The European Enlightenment, the Industrial Revolution, and Modern Economic Growth Joel Mokyr 2. The Unbearable Lightness of A - Useful Knowledge and Economic Growth Thrainn Eggertsson 3. The Law Merchants Story: How Romantic is it? Bruce L. Benson 4. Path Dependence: A Foundational Concept for Historical Social Science Paul A. David PART II: EVOLUTIONARY THEORY IN LAW AND ECONOMICS 5. System and Evolution in Corporate Governance Simon Deakin and Fabio Carvalho 6. Constitutional Possibility and Constitutional Evolution Eric A. Posner 7. The Expressive Power of Adjudication in an Evolutionary Context Richard H. McAdams 8. Forces Shaping the Evolution of Private Legal Systems Amitai Aviram 9. Legal Evolution between Stability and Change Martina Eckardt 10. The Genesis of Law: On the Paradox of Laws Origin and its Supplement Marc Amstutz 11. Gene-Culture Co-Evolutionary Theory and the Evolution of Legal Behavior and Institutions Bart Du Laing 12. Making Evolutionary Theory Useful for Legal Actors Mauro Zamboni PART III: TRANSNATIONAL LAW AND EVOLUTIONARY GOVERNANCE 13. Transnational Commercial Law, Multi-level Legal Systems, and Evolutionary Economics Wolfgang Kerber 14. Darwin at Work: How to Explain Legal Change in Transnational and European Private Law Jan M. Smits 15. Linking Extra-legal Codes to Law: The Role of International Standards and Other Off-the-track Regimes Erich Schanze 16. Transnational Governance and Evolutionary Theory Gralf-Peter Calliess, Jorg Freiling and Moritz Renner Index

Reshaping Markets. Economic Governance, the Global Financial Crisis and Liberal Utopia.

Set against the origins and consequences of the global financial crisis, this timely book offers an enriching and revealing narrative of the role that the state plays in regulating markets. Focusing on core areas of private law such as corporate, labour and banking law, the contributors offer a conceptual framework in which to examine the central tenets of the role of private law in today’s global economy. In the current climate of ever-increasing economic inequality and austerity measures, the authors highlight the urgent need for a comprehensive analysis of the continuing tension between ideas of market liberalism and theories of society. With a focus on both the domestic and transnational dimensions of market governance, the authors offer a crucial insight into the co-existence and interaction between state and market-based economic governance.

Corporate Governance, Capital Market Regulation and the Challenge of Disembedded Markets

Long before the current financial and economic crisis, corporate governance and securities regulation had become part of one of the most interesting and dynamic regulatory areas in law and policy making today. Both areas had been undergoing dramatic transformations over the past 30-40 years, which saw a global expansion of capital markets and a deep-running ‘financialisation’ of the corporation. Around the world governments saw themselves challenged to adapt their regulatory apparatus to the whims and hues of nervous investors with global sensitivities. Meanwhile, scholars in law, economics, but also political science and sociology fiercely debated whether what was unfolding constituted a worldwide convergence around a corporate governance philosophy that placed the shareholder at the centre or whether we would continue to have different, divergent corporate governance systems around the world. Today’s crisis-responses appear to be primarily designed to ‘fix the excesses’ of the past decades, rather than driven by an interest to connect the present efforts at regulation with the earlier convergence vs. divergence debates, which themselves built on much older critiques of the embeddedness of the firm and the political economy context of corporate activity. The paper contends that the sustainability of future corporate governance and securities regulation depends on the effort to critically examine both areas in the context of a larger inquiry into the goals and challenges of market regulation.

Quod Omnes Tangit: Globalization, Welfare Regimes and Entitlements

While the dispute over the past or the future of the welfare state1 has traditionally set off about the proper definition of what characterizes the welfare state,2 today’s attention is aimed at gaining a clearer focus on the reasons for its status as a severely endangered species. Paradoxically, the alleged reason of all worry — globalization — remains at best a vaguely defined phenomenon in continuing need of further analysis and exploration.3 While the different dimensions of the welfare state under pressure are only beginning to be grasped, we are witnessing a substantial widening of the research spectrum.4 Analyses of the highs and lows of the welfare state were traditionally more-or-Iess connected with right and left politics that debated over the legitimate reach of state regulation of societal welfare (“non-market regulation of the market”);5 the European and global agendas replace these frames of reference. Complicating policy choices further, welfare politics have become an issue of international regulatory competition.6 Recent work persuasively insists on the various comparative institutional advantages connected to particular systems of “embedded capitalism” which are responsible for different — more-or-less successful — models of welfare regimes.7 In particular, the value of the “varieties of capitalism” research lies in its redirecting our attention to the different institutional settings of welfare systems and understanding them as vital elements of capitalist market regimes.8