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This timely book explores the relationship between private law and globalization. It examines the consequences of the fact that law making now takes place in a globalized world which increasingly leads to questions of accountability and legitimacy of the law making process. Within this work, European and South African scholars deal with the relationship between private law and globalization in fourteen innovative chapters, addressing inter alia globalization, democracy and accountability, harmonization versus decentralization, public law issues, corporate governance, procedural issues as well as human rights and the environment. This well-documented and original study will be a valuable resource for academics and legal practitioners as well as students. Specialists in private law, transnational law, international law and legal theory should also not be without this important book.
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Globalization and Private Law Globalization and Private Law The Way Forward Edited by Michael Faure Professor of Comparative and International Environmental Law, Maastricht University and Professor of Comparative Private Law and Economics, Erasmus University Rotterdam, The Netherlands André van der Walt South African Research Chair in Property Law and Professor of Law, Stellenbosch University, South Africa Edward Elgar Cheltenham, UK • Northampton, MA, USA © The Editors and Contributors Severally 2010 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2009940743 ISBN 978 1 84844 760 8 02 Typeset by Cambrian Typesetters, Camberley, Surrey Printed and bound by MPG Books Group, UK Contents List of contributors List of abbreviations xv xvi Introduction and editorial preface Michael Faure and André van der Walt 1 Problem definition and reasons for this book 1.1 Lawmaking in a globalized world 1.2 Convergence, divergence, accountability and legitimacy 1.3 Who sets the agenda? 2 History and origins of this book 3 Methodology 3.1 Legal multidisciplinarity 3.2 Comparative approach 3.3 Multidisciplinarity 4 Topics 5 Central focus 6 Structure of this book 7 Contributors 8 Acknowledgements References PART I 1 1 2 3 4 4 6 6 7 7 7 10 10 11 11 12 GLOBALIZATION, DEMOCRACY AND ACCOUNTABILITY 1 Democracy and (European) private law: a functional approach Jan Smits 1 Introduction 2 Law without a state: a problem of democracy? 3 Deconstructing democracy 4 The legitimacy of the draft CFR 4.1 Accountability: legitimacy through jurisdictional competition 4.2 Participation: the experience with optional instruments 4.3 Private law: design or organism? 5 Conclusions References v 15 15 17 19 22 23 24 25 27 28 vi Globalization and private law 2 Public accountability of transnational rule making: a view from the European Union and beyond Deirdre Curtin 1 Introduction 2 Shifts in transnational governance: actors, instruments and levels 2.1 Multi-level governance 2.2 Actors 2.3 Instruments 2.4 Levels 3 Approaches to legitimacy and democracy of transnational governance 3.1 Approaches to understanding legitimacy in the EU 3.2 Understanding and conceptualizing (EU) ‘democracy’ 4 Conceptualizing and applying public accountability 4.1 Accountability relationships 4.2 Accountability as a virtue 4.3