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The foundation of the global economy : the evolution of the international regime for private trade law from the eleventh through the twentieth centuries Cutler, Athena Claire


This study analyzes the evolution of the regime governing private international trade law from its inception in the eleventh century through to its modern formulation in the twentieth century. It also seeks to explain its development by focusing on three theories of international relations. The regime is defined in terms of its substantive and procedural dimensions. The nature and strength of the norms governing the substantive dimension (prices, liability for defective goods, allocation of transport costs, insurance, and financial and credit arrangements) and the procedural dimension (locus of regulation, methodology of rule creation, and dispute settlement) are analyzed over three historical phases. These three periods are the medieval period, from the eleventh to the sixteenth centuries, the early modern period, from the seventeenth to the nineteenth centuries, and the modern period in the twentieth century. The regime norms are found to exhibit significant continuity over time, although there has been considerable variation in the rules. The strength of the regime has also varied over the three phases. Three theoretical perspectives (structural realism, functionalism, and sociological analysis) are evaluated for their relative ability to explain the origin, evolution, nature, and strength of the regime. Each perspective is found to offer important insights, but a synthesis of approaches is necessary to capture the complexity and richness of the regime's evolution. Structural realism does not account for the origin of the regime and is of limited assistance in explaining the strength of voluntary standards. It does, however, explain the influence that states' concerns for political/legal autonomy have had on the regime and offers a reasonably good account of the roles that the United States and the United Kingdom have played in the evolution of the regime. Sociological analysis assists in accounting for the origin and nature of the regime, but it does not provide a comprehensive theory of cooperation. Reference to the other approaches is required as a supplement to sociological analysis. Functionalism provides the best explanation of the origin and nature of the regime. However, it is unable to account for variations in the strength of the regime over the three historical periods. Reference to the influence of changing structures of political authority and to the ideas, knowledge, and values of the major commercial actors is necessary as a supplement to functional analysis.

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