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Copyright (c) 2001 Tulane University Tulane Law Review
March, 2001
75 Tul. L. Rev. 1103
LENGTH: 6757 words
CENTENNIAL WORLD CONGRESS ON COMPARATIVE LAW: Beyond National Systems: A Comparative Law for the International Age
NAME: Mathias Reimann*
BIO: * Hessel E. Yntema Professor of Law, University of Michigan. Dr. iur. 1982, Universitt Freiburg; LL.M. 1983, University of Michigan.
[1103]*
Introduction
Meeting for the centennial of the Paris Congress of 1900, widely considered the birth hour of modern comparative law, is a welcome occasion to celebrate our discipline's past accomplishments as well as its current revival in many parts of the world. n1^ More importantly, however, it provides an opportunity to reflect upon the difficulties and [1104]* problems that beset the field. The most widespread concern is, perhaps, that in most places in the world, comparative law does not play nearly as prominent a role in legal academia and practice as befits our age of globalization (real or perceived). Comparative law should occupy a central place in an environment in which transboundary issues have become routine. However, all too often, our discipline "fails to excite the imagination of students and practising lawyers." n
In recent years, many of the potential reasons for this situation have been articulated: the lack of the discipline's sense of direction, n3^ the weakness of its theoretical foundations and methodological tools, n4^ and the dubious nature of many of its presumptions and premises, n5^ to name just some of the most salient issues. Yet, there is a fundamental deficit that has by and large gone unnoticed n6^ but that may be more responsible than any other problem for the marginal status of our field: comparative law is badly out of date because it is premised on the legal reality of an age long left behind.
I discuss this deficit in three steps. I first explain the problem by showing how comparative law fell behind the times. By sticking to the concept promoted by the Paris Congress, i.e., the comparison of national legal systems, our discipline has failed to integrate the transnational n7^ regimes that have become so prominent in the second half of the twentieth century. As a result, it remains blind to a large and increasingly important part of legal reality (I.). The effects of this partial [1105]* blindness are serious. It hampers our discipline's scholarly agenda, distorts its message in teaching, and greatly reduces its relevance for modern legal practice (II.). The remedy must be to integrate the study of transnational regimes, such as the European Union (EU) or the World Trade Organization (WTO), into mainstream comparative law. This will require a partial redirection of our efforts. While some of this can be done with traditional tools, other parts present serious challenges (III.).
As should be clear even from this brief road map, I am not concerned with our discipline's utility for transnational law. Of course, comparatists recognize the value of comparison for the making and application of public and private international law, and they emphasize the promise their discipline holds for legal harmonization and unification. n8^ Its role in developing uniform law has been a routinely reiterated theme from the Paris Congress n9^ to the present agenda of creating a common private law of Europe. n10^ Like Rodolfo Sacco, I tend to be somewhat skeptical about the importance of our discipline in this context, n11^ but I take no position on that question here. Instead, my argument in this Article is that comparative law has failed, but
urgently needs, to make the study of existing transnational law an integral part of its agenda.
I. The Problem: Comparative Law Behind the Times A. Paris 1900: The Birth of the Traditional Concept
In order to understand how our discipline has come to lag behind twentieth-century developments, we must recall some of its history. n12^ Comparative law was not, of course, invented at the Paris Congress. It had existed for hundreds of years, although it was not called comparative law (droit compare, Rechtsvergleichung, diritto comparato, or the like) before the nineteenth century. At least since the Middle Ages, jurists had compared an extraordinary variety of legal rules and systems: Roman and canon law, droit ecrit and droit coutumier, tribal and feudal regimes, biblical commands and natural law precepts, among others. To this, the late nineteenth century added [1106]* an ethnic dimension by comparing whole legal cultures from a historical and worldwide perspective. n
In contrast to this richness, the concept of comparative law that the Paris Congress bequeathed to the twentieth century was extremely narrow. Its lodestar was the science of a "droit commun legislatif." n14^ This meant, essentially, the comparison of the private law codes and statutes of continental European countries with the purpose of legal harmonization and unification. n15^ Most importantly in our present context, it meant reducing the discipline to the comparison of national legal systems.
At the time, this seemed obvious and was quite appropriate. After all, there simply were no other legal regimes that seemed to matter (anymore). Feudal and tribal rules were legal history. Roman law and indigenous customs had just been rendered obsolete by the great codifications. Canon law had lost most of its force in the modern secular state. Distant religious or customary regimes were far beyond the orbit of the dominant Eurocentric approach. n16^ Public international law operated somewhere at the outer margins of the legal universe and played a very limited role in practice. In short, in the age of the modern state with its monopoly on lawmaking and enforcement, the law of the civilized world consisted exclusively of the laws of sovereign nations, such as France, Germany, or Italy. At the time, this seemed almost too obvious to mention. n17 (^) Thus was born the traditional concept of twentieth-century comparative law: it meant the study of national
legal systems, their laws, and virtually nothing else.
B. 1945 and Beyond: The Rise of Transnational Regimes
Needless to say, the legal universe changed in the twentieth century, especially in its last few decades. With regard to the objective of our discipline, i.e., the comparative examination of legal systems, three changes are particularly significant: the rapid rise of [1107]* transnational law, the growing interdependence of national regimes, and the emergence of large-scale transnational legal practice. These changes are closely interrelated but are best addressed seriatim.
In the second half of the twentieth century, we witnessed the rise of numerous legal systems outside of, and above, the national ones. Since the founding of the United Nations, international law has developed into a complex legal regime with rulemaking bodies, a multitude of written provisions, a court, and enforcement mechanisms, however effective or ineffective. Several international trade regimes were created. On a global level, the General Agreement on Tariffs and Trade (GATT) and the WTO were formed; on a regional level, the European Economic Community (now the EU) and the North American Free Trade Agreement (NAFTA) were established; others, like the Common Market of the South (MERCOSUR), are now emerging. In the area of private law and litigation, international conventions of all sorts have proliferated under the auspices of the Hague Conference of Private International Law, the United Nations Commission on International Trade Law (UNCITRAL), or the European Community and pertain, inter alia, to the sale of goods, choice of law, procedural matters - such as service of process, taking of evidence, and jurisdiction and judgments - and arbitration. Human rights systems have also developed, again, in both a worldwide and a regional, especially European, context. In addition, there are several unofficial codifications of substantive law in the international sphere that have lately enjoyed much attention, especially the UNIDROIT Principles n18^ and the Principles of European Contract Law. n19^ Perhaps the most striking of all these developments is that the countries of western Europe have recently formed a political union with standardized passports, common policies, a common currency, and other common elements. More than any of the other changes, the EU demonstrates that, today, national legal systems are no longer alone in the legal universe. They coexist with regimes operating on the supra-or international level.
and, very often, they are still what really counts. Yet, while this is a good reason to study national laws, it is not a good reason to neglect the rest of the [1112]* legal universe. Transnational systems matter as well, and increasingly, they are what really counts. As a result, comparatists need to study both. The bad reason for clinging to the old nationalist concept is sheer inertia. It is true that legal academia usually lags behind the times. Yet, such time lags must be limited as much as possible. Decades of delay, as in our case, seriously impair the functioning and the importance of the whole discipline.
II. The Effects: Impacts on Scholarship, Teaching, and Practice
The failure of comparative law to keep pace with recent developments is hard to deny. In the legal universe today, a host of transnational regimes and practices overlay, connect, and influence domestic law in complex ways. But orthodox comparative law continues to function as if the world still consisted only of national legal systems existing independently side by side. Thus, it misses much of what is actually happening. The effects on our scholarship, teaching, and utility for legal practice are serious.
A. Scholarship: Misdirecting Inquiries
Comparatists are primarily scholars, and at least most civilian academics would contend that the "primary aim of comparative law, as of all sciences, is knowledge." n31^ Perhaps our inquiries need not be directly useful in practice, but they should certainly focus on and seek to explain reality. From this academic point of view, there are two major reasons why comparative legal scholarship can no longer afford to ignore the transnational sphere.
The first reason is simply that it must direct its efforts not at the world of bygone days but at the legal universe we actually live in today. If this universe consists of an extensive network of legal systems on several levels, with multiple horizontal as well as vertical connections, comparative legal scholarship must make this reality the object of its study. Only then can it help us understand our current condition.
The second reason is that the need for knowledge about transnational legal systems is particularly great. As far as the domestic regimes of the economically leading countries are concerned, past efforts have generated a solid stock of knowledge and understanding. The basic work is done, and all that is required for the time being is [1113]* updating, gap filling, and refinement. n32^ In contrast, the transnational systems have yet to be explored. Our discipline has produced almost no comparative knowledge about, or understanding of, their genesis, institutions, actors, sources, and processes. Nor has comparative law explored the relationship among supranational systems or between them and national laws. Here, we are at the very beginning and need all the knowledge we can get.
B. Teaching: Misleading Students
Perhaps the most important benefits of comparative law are educational. It is true that many of these benefits can be generated by looking only at foreign national systems: experiencing the variety and contingency of law, learning tolerance toward other legal cultures, critically looking back at one's own rules, and so forth. Here, exactly what other legal system students are exposed to is actually of secondary importance; what is crucial is that they step outside of their own legal system at all.
Other important educational goals, however, cannot be reached by limiting one's view to national legal systems. Comparative law must also provide students with a map of the legal universe in which they will have to work. It must give them an overall sense of orientation by telling them what legal systems there are and how we may understand their relationship and connections among each other. If our teaching limits this overview to national laws, then it provides students with a woefully incomplete picture. Where it names "les grands systemes" without mentioning EU law, n33^ describes the legal professions in Europe without mentioning the EU directives pertaining to cross boundary practice and without a word about the role of international law firms, n34^ and where it compares courts and judicial processes without including supranational tribunals, n35^ it misleads its audience.
[1114]* But the exclusion of transnational material not only affects the accuracy of information, it also fosters simplistic thinking. Presenting the world solely as a set of coexisting national systems (or families) creates a psychology of us versus them: our law here, their law there. In today's world, things are not so easy anymore, because how we group communities depends on the level on which we operate. Take the law of
international sales. Is it really the Germans with their Brgerliches Gesetzbuch versus the Americans with their Uniform Commercial Code? Or is it rather the Germans and the Americans as members of the United Nations Convention on Contracts for the International Sale of Goods (CISG) n36^ versus the English who have not ratified it? Or is it perhaps the Germans and the English as EU members (and thus signatories to the Rome Convention) n37^ versus the Americans? Or is it perhaps all these countries as members of the WTO (and thus beneficiaries of its free trade regime) versus those nations who are not? As these permutations demonstrate, students must learn to think on several levels and in changing categories, not rigidly in terms of this or that national legal system.
C. Practice: Missing the Boat
When it comes to legal practice, much of traditional comparative law scholarship and teaching simply misses the boat. In international transactions and disputes, most issues cannot be handled solely on a level of national law anymore. Instead, they require an understanding of transnational regimes.
Take again, for example, an international sales contract. Suppose an American producer sells genetically engineered corn seed to a German importer. When the shipment arrives at port in Hamburg, the German customs authorities refuse to release it because they claim that the product is illegal under German law. The seller demands the purchase price; the buyer seeks damages for breach of contract. Now consider the material a lawyer must take into account in order to evaluate such a case. Of course, it may be useful to know something about domestic American and German contract law. But first, however, he or she must consider the CISG. Moreover, EU law may come into play in the form of import restrictions on genetically engineered agricultural products. WTO rules may contain applicable [1115]* regulations as well. Perhaps most importantly, counsel needs to understand how all these regimes interrelate, e.g., that the CISG overrides national law unless it is excluded by the parties; n38^ that import restrictions on the EU level bind German customs authorities and may influence whether the seller breached the contract; and that WTO rules regulate international trade worldwide and may limit or otherwise affect the application of EU law. n
This does not mean that the knowledge and understanding that traditional comparative law can provide is completely irrelevant in international legal practice. But by limiting itself to national laws, the discipline covers only a small part of the relevant legal systems, teaches us nothing about their interplay, and thus matters to a limited extent at best. As every international lawyer will tell you, the major benefit of comparative knowledge is simply that it facilitates communication with foreign counsel about foreign law. That is no small matter, but, in an age in which so much turns on law beyond the domestic sphere, it is not nearly enough.
III. The Remedy: Integrating the Transnational Sphere
In order to catch up with the times, comparative law needs to integrate today's transnational legal systems, rules, and practices. Here is a rough outline of what that may mean, proceeding from the relatively simple to the tougher challenges.
A. The Simple Job: Incorporating Transnational Material
On a relatively simple level, all it takes is to add the relevant transnational material to our current coverage. Note that this does not require changing our basic concept. We will continue to pursue, as article 2 of our Academy's statutes puts it, "the comparative study of legal systems." n40^ We will just get rid of the artificial restriction to national legal systems. After all, we have gotten rid of virtually all the other straitjackets of the earlier approach, n41^ and the abolition of this [1116]* last lingering limitation is long overdue. In a sense, embracing other kinds of legal systems is merely a return to the broader approach that had prevailed for centuries. n42^ Only this time, the most important nonnational law is not Roman, canon, or tribal, but is transnational.
One might be tempted to argue that transnational material is not the right stuff for comparative law because it should be, and actually is, covered by specialists in their respective areas; thus it should be left to the international trade, EU, or human rights lawyers. The argument is seductive but wide of the mark. Comparatists do not leave French or English law to the French or English lawyers, and for good reason. It is the very point of our discipline to explore foreign terrain so that we can learn something from its comparison (explicit or implicit) with familiar turf. Today, the only reason to limit our explorations to the legal systems of
become experts in this or that transnational system.
The going gets rougher when it comes to teaching comparative law. When we provide an overview of the world's major national systems and legal families, we must already limit the presentation to outlines so bare that the picture we draw can easily become meaningless. When we introduce our students to the details of particular systems, we already have to focus on two or three and omit all the rest. Adding transnational regimes exacerbates the dilemma, because it makes the field even larger and more confusing, while the students' capacity to digest information remains as limited as ever. Tackling this dilemma requires careful choices about what we teach. We must pick material that illustrates general issues and structures so that students can extrapolate from what they understand in one context to other areas. At the end of the day, there is no easy response to this inherent challenge, and we must learn to tackle it as we go along. Yet, unless we are willing to commit educational malpractice, we cannot avoid these problems, because we must teach our students to [1119]* understand the complex legal universe we live in, not a simpler version of the past.
Conclusion
The narrow focus of mainstream comparative law on national legal systems and its concomitant neglect of other regimes is a vestige from the heyday of nationalism at the time of the Paris Congress. As we meet at the New Orleans Congress a century later, we have entered a more international era and need to broaden our horizon to encompass the transnational sphere of law. There is some movement in that direction, but it is still sporadic and limited to a few areas. Comparative law needs a general and fundamental updating that replaces the nationalist premises dating from 1900 with the international realities of the year 2000.
Of course, this does not mean that we ought to abandon the study of national legal systems, nor that, from now on, every comparatist must become an expert in transnational law. The systems of sovereign nation-states continue to be of vital importance, and only a few comparative lawyers may want to specialize in other matters. But the field as a whole must overcome the antiquated view of a neatly compartmentalized world consisting only of sovereign countries and must integrate the most important transnational regimes.
As a result, every comparatist must acquire at least a basic understanding of how such regimes' systems work, compare with national systems, and interact with domestic law.
This is a serious challenge, but its difficulties should not be exaggerated. Moreover, it is not really a matter of choice but a necessity. Comparative lawyers who are tempted to cling to the traditional model and thus to ignore the changes of the last few decades should remember Gorbachev's admonition to East German leaders in 1989. Reform your regime while there is still time, he urged them, because "he who acts too late will be punished by life." n
Legal Topics:
For related research and practice materials, see the following legal topics: Commercial Law (UCC)Sales (Article 2)Subject MatterGeneral OverviewInternational LawDispute ResolutionGeneral OverviewInternational Trade LawImports & ExportsGeneral Overview
FOOTNOTES:
n1. Comparative law has recently become prominent in western Europe in the context of the Europeanization of private law. The discipline has also experienced somewhat of a revival in the United States as demonstrated by the proliferation of teachi ng materials, specialized journals, and other literature about the field. Of course, comparative studies are well established in many other parts of the world, such as Japan, Korea, Israel, and South Africa.
n2. Basil Markesinis, Comparative Law - A Subject in Search of an Audience, 53 Mod. L. Rev. 1, 1 (1990).
n3. See, e.g., Symposium, New Approaches to Comparative Law, 1997 Utah L. Rev. 255; Symposium, New Directions in Comparative Law, 46 Am. J. Comp. L. 597 (1998). For a summary of the latter collection of essays, see Ugo Mattei & Mathias
Reimann, Introduction, 46 Am. J. Comp. L. 597, 597-606 (1998).
n4. See, e.g., William Twining, Globalization and Comparative Law, 6 Maastricht J. Eur. & Comp. L. 217, 229-41 (1999) (criticizing the discipline).
n5. For example, scholars have criticized the widespread presumptions that different laws ultimately tend to reach similar solutions and that modern legal systems are by and large converging. See, e.g., Rodolfo Sacco, Introduzione al diritto comparato 6-8 (5th ed. 1992); Vivian Grosswald Curran, Cultural Immersion, Difference and Categories in U.S. Comparative Law, 46 Am. J. Comp. L. 43, 90-92 (1998); Pierre Legrand, European Legal Systems Are Not Converging, 45 Int'l & Comp. L.Q. 52, 52- (1996). For a critique of the discipline's inherent cultural biases, see Gnter Frankenberg, Critical Comparisons: Re-thinking Comparative Law, 26 Harv. Int'l. L.J. 411, 411-55 (1985).
n6. There are some minor exceptions. See infra note 23 and accompanying text.
n7. Throughout this Article, I primarily use the term "transnational" (law, regimes, material) which has received considerable currency since Philip Jessup's Storrs Lectures at Yale half a century ago. See Philip C. Jessup, Transnational Law (1956). I use it to denote law beyond national laws in the broad sense. This comprises public and private international law (i.e., between nations, such as international conventions) as well as supranational structures and regimes (i.e., above nations, such as the European Union).
n8. See, e.g., Konrad Zweigert & Hein Ktz, Introduction to Comparative Law 24-28 (Tony Weir trans., 3d ed. 1998).
n9. See infra notes 12-17 and accompanying text.
n10. See, e.g., Zweigert & Ktz, supra note 8, at 28-31.
n11. See Sacco, supra note 5, at 8-10 (arguing that the role of comparative law in previous processes of legal unification was often quite negligible).
n12. For an overview of the developments until the nineteenth century, see Walther Hug, The History of Comparative Law, 45 Harv. L. Rev. 1027, 1027-70 (1932).
n13. See Zweigert & Ktz, supra note 8, at 57-58.
n14. See id. at 61.
n15. We must not forget, however, that the intellectual horizon of the major participants was by no means so narrow. Edouard Lambert displayed a very broad and highly sophisticated view of comparative law and all its then-current ramifications. See Congres International de Droit Compare, Proces-Verbaux des Seances et Documents 26-61 (1st ed. 1905) [hereinafter 1 Congres].
n16. All participants in the Paris Congress were Europeans. See 2 Congres International de Droit Compare, Proces-Verbaux
at 157-58 (dealing with the civil law tradition, but referring to European law in barely a page); Sacco, supra note 5, at 179- (showing an awareness of the need to consider transnational issues, but still focusing almost exclusively on national legal systems); Arthur Taylor von Mehren & James Russell Gordley, The Civil Law System (2d ed. 1977) (making no reference at all to transnational law, which is normal for older works).
The standard reference tool of our discipline, the International Encyclopedia of Comparative Law, pays at least some, albeit very limited, attention to transnational law. In fairness, its basic design dates back to the 1960s and 1970s. It begi ns in the most traditional fashion with a large number of national reports in Volume I, continues with an orthodox overview of the world's legal systems in Volume II, and is then subdivided by subject matter areas, such as contracts or torts, in Volumes III through XV. To be sure, a few parts look beyond national systems. For example, Volume II, chapter 5, addresses the international unification of law, Volume III deals with private international law (most of which, however, is part of the respective national legal systems), and Volume XV devotes chapter 22 to international economic systems, such as the GATT.
I would also assign the American Journal of Comparative Law to this middle ground. Over the last decade, the Journal has published an average of about two articles on transnational issues per year; most of these articles deal either with EU law or with the international harmonization of law.
n26. Some works contain chapters on EU law, see, e.g., Glendon et al., supra note 22, at 325; Mary Ann Glendon, Michael Wallace Gordon & Christopher Osakwe, Comparative Legal Traditions: Text, Materials and Cases 340-94 (2d ed. 1994); Peter de Cruz, Comparative Law in a Changing World 139-81 (2d ed. 1999), though they mention very little else on the transnational level. Some books include transnational materials in the comparison of specific subject matter areas. See, e.g., Ingeborg Schwenzer & Markus Mller-Chen, Rechtsvergleichung: Flle und Materialien (1996); 1 Hein Ktz, Europisches Vertragsrecht 25-50 (1996). For a mix of studies, some in the traditional comparative law mode, others focusing on transnational law, see Toward Comparative Law in the 21st Century (Inst. of Comparative Law in Japan ed., 1998). The most recent edition of the Schlesinger casebook also pays more than passing attention to the transnational world of law. See Rudolf B. Schlesinger et al., Comparative Law passim (6th ed. 1998). While the book contains no full chapters on, nor any sustained treatment of, transnational law, it offers a broader array of such material than any of its competitors, probably as a result of its orientation toward legal practice. In studies of special areas of European law, i.e., outside the traditional comparative camp, scholarship integrating at least national and EU material is becoming more common. See, e.g., Stefan Grundmann, Europisches Schuldvertragsrecht (1998); Marcus Lutter, Europisches Unternehmensrecht (4th ed. 1996); Sources and Categories of European Union Law: A Comparative and Reform Perspective (Gerd Winter ed., 1996); Paul R. Dubinsky, The Essential Function of Federal Courts: The European Union and the United States Compared, 42 Am. J. Comp. L. 295, 295-346 (1994).
n27. See supra note 24.
n28. On occasion, comparative lawyers have also considered other systems not strictly tied to the state, such as religious and tribal regimes, see, e.g., David & Jauffret-Spinosi, supra note 24, at 367-83, 394-406, 447-61; H. Patrick Glenn, Legal Traditions Of The World (2000); Zweigert & Ktz, supra note 8, at 303-19, Roman jurisprudence, see, e.g., Alan Watson, Roman Law & Comparative Law (1991), or the law of particular ethnic groups, see, e.g., Gypsy Law Symposium, 45 Am. J. Comp. L. 225 (1997). For an interesting mix, see Alan Watson & Khaled Abou el Fadl, Fox Hunting, Pheasant Shooting, and Comparative Law, 48 Am. J. Comp. L. 1 (2000). Yet, such studies are exotic exceptions on the margins of our discipline.
n29. Because I have not looked at every book and article on comparative law recently published in the world, I may be overlooking something. If so, I would be glad to be proven (at least partially) wrong in my description of the current situation. I recognize that outside the traditional comparative law camp there are some efforts at integrating transnational material into specific comparative studies. See supra note 26.
n30. Comparative law abandoned its limitation to continental Europe, soon encompassed the common law orbit, and today embraces pretty much the whole world, at least in theory. It enlarged its focus from codes and statutes to other legal sources and from private law to public, criminal, and procedural law. It overcame rigid rule comparison in favor of a functional and contextual approach; in fact, it is no longer limited to black letter rules at all but encompasses whole legal cultures, including their genesis, styles, actors, institutions, and processes. Its goals are no longer only the unification and harmonization of law, but include a pluralism of purposes almost too numerous to mention. See Zweigert & Ktz, supra note 8, at 59-62 (providing an overview of the developments since the Paris Congress).
n31. Id. at 15.
n32. It is no accident that, as far as national legal systems are concerned, new insights and original perspectives have been extremely rare in the last few decades.
n33. See David & Jauffret-Spinosi, supra note 24.
n34. See Zweigert & Ktz, supra note 8, at 126-31, 191-97, 212-17.
n35. See Henry J. Abraham, The Judicial Process, at vii (7th ed. 1998) (acknowledging "major - in fact, dramatic - developmental changes in the nature and application of the judicial process, both domestic and foreign" since the last edition in 1993, but continuing to focus solely on a few national court systems); see also Herbert Jacob et al., Courts, Law, and Politics in Comparative Perspective 167-70 (1996) (dealing with the courts of five nations but mentioning international tribunals, like the European Court of Justice or the European Court of Human Rights, only in passing).
n36. United Nations Convention on Contracts for the International Sale of Goods, opened for signature Apr. 11, 1980, S. Treaty Doc. No. 98-9 (1984), 1489 U.N.T.S. 3 [hereinafter CISG].
n37. Convention on the Law Applicable to Contractual Obligations, June 19, 1980, 19 I.L.M. 1492 (entered into force Apr. 1, 1991).
n38. CISG, supra note 36, arts. 1-6.
n39. Comparative law would not be much more useful in negotiating and concluding such a contract either. To be sure, an understanding of American and German contract law might help to make an intelligent decision about choice of law. But in practice, this is hardly a burning issue. In large and specific international deals, counsel normally drafts extensive contracts, providing a full set of custom-tailored rules, which by and large displace the domestic laws of the involved countries anyway. In small, routine transactions, choice of law is determined by standard forms or dictated by the stronger party.
n40. Int'l Acad. of Comparative Law, Directory of the Academy 19 (4th ed. 1999).
n41. See supra note 12.
n42. See supra note 13 and accompanying text.
n43. Of course, in dealing with transnational law, comparatists will need the help of area specialists just as they have traditionally needed the help of experts in foreign national law.
n44. See, e.g., Renaud Dehousse, Comparing National and EC Law: The Problem of the Level of Analysis, 42 Am. J. Comp. L. 761, 761-81 (1994); Symposium, Special Issue on Interactive Private Law Adjudication in the European Multilevel System - Analytical Explorations and Normative Challenges, 8 Eur. Rev. Private L. 1 (2000).
