Comparative Commercial Law: Methodologies, Black Letter Law and Law-in-Action

Abstract

Evaluating the strengths and weaknesses of international business transactions presents vexing challenges for the legal comparativist and practitioner. Divergent legal regimes impact business decisions, as commercial transactions extending across different legal jurisdictions may produce different and perhaps unexpected results. Exclusively relying on black-letter law does not sufficiently capture the entire comparative landscape. Rather, evaluating how black letter law, or law-in-the-books, reacts with law in practice presents the optimal analytical vantage point.1 Such approach necessitates that a credible, neutral and objective method evaluates the international business transaction — one which considers that economic, cultural and sociological viewpoints, perhaps competing, all exist. These analytical methods, while providing valuable reference points, do not independently present a complete picture.2 Rather, a hybrid comparative theory, objective pluralism, incorporating all of these methodologies, is a more effective evaluator tool providing the optimum means for evaluating comparative commercial law issues.3 The totality of this review presents a balanced perspective offering unique issue insights. Part one introduces the need for objective modes of comparative law analysis within the context of international business transactions, most notably contractual relationships. Discussing the disparate common and civil law families evidences why objective methods are necessary to explore legal problems extending over systematic divergences. Focusing on how good faith under comparative contract law is interpreted quite differently between (and within) these families demonstrates that legal concepts transplanted across legal families may have different meanings. Part two explores how black letter law is applied in practice, through the lens of objective pluralism, yielding nuances while providing comparativists with an important toolkit to further “test” a legal problems. The economic comparative method is evaluated, with special focus given to efficiency and transaction-based economic methodologies. Next, the sociological comparative method is analyzed, with emphasis on behavioral theory. Relational contracting, which contains elements of economic-based methodologies, is subsequently reviewed. The paper then proposes the new methodology, objective pluralism, as the most efficient tool for analyzing the strengths and weaknesses of comparative business transactions. Practical application of objective pluralism involves a carefully-constructed survey or empirical study.