ABOUT TDM
|
Souverainete etatique et marches internationaux a la fin du 20ieme siecle, A propos de 30 ans de recherché du Credimi, Melanges en 'lhonneur de Philippe Kahn
Souverainete etatique et marches internationaux a la fin du 20ieme siecle, A propos de 30 ans de recherché du Credimi, Melanges en 'lhonneur de Philippe Kahn (ed. Charles Leben,. Eric Loquin, Mahmoud Salem), Litec 2000, ISBN 2-7111-3268-4, 720 pages, incl. List of contributors, bibliography of Philippe Kahn & Credimi, list of subscribers, 500 FF/Euro 76.22
Legal Scholars tend to be lone ranger academics; they work by themselves atoms, publish minor, and sometimes major works, but they are usually not - as scientific teams led by leader-scholars - in collaborative mode. There is therefore a certain atomistic character to legal scholardom. Rare are the exceptions. Philippe Kahn is one of them. One of the most eminent French scholars in international economic/commercial law, perhaps the key French scholar in this field of his generation, he has an unbroken line of in-depth analyses, always insightful and stimulating, often creative, generally pursuing the contemporary developments in international business.
Not just the re-working of work done by other scholars and decisions of the courts, but a perseverant effort to get at the reality of international business transactions - contracts from real life, dialogue with practitioners in companies, law firms, banks and international agencies - have been the key features of a career spanning from the 1960s to 2000. Legal scholars also tend to focus on very narrowly defined sub-disciplines which are - as international public, commercial, economic and private law - tightly compartmentalized, with little cross-border traffic - and this in spite of a single subject: the role of law in the international economy. Few scholars and "schools" transcend this narrow focus, often borne out of the desire to build up confidence by mastering perfectly a mini-area. Again, Philippe Kahn is an exception.
He, and his students and team colleagues work, has moved between traditional international law, in particular the role of international economic treaties, their interpretation (the title of a masterful article in Clunet/JDI), the role of commercial transactions (with a focus on a legal-commerce oriented analysis of particular types of transnational commercial contracts and now e-commerce) and the role of national economic regulation (first with a focus on comparative investment law). This distinguishes this scholar and his "school" from the majority which is only comfortable in the tight context of a single sub-discipline. Philippe Kahn has been the founder-leader of the influential "Ecole de Dijon", centred around the Kahn-created Centre for the Law of International Investment and Markets (CREDIMI) funded by the French research funding organization (CNRS) and attached to the Universite de Bourgogne.
He has resisted the in France natural trend to Paris - perhaps helped by the many beauties and pleasures of Dijon, the former capital of the art- and beauty-loving Dukes of Burgundy. The Research Centre he created did not only become the spawning ground of numerous Francophone scholars and practitioners in the field of international business law, but it was also the venue of regular conferences focused on salient issues of the day - starting with the then virtually unknown, but now booming International Centre for the Settlement of Investment Disputes (ICSID) in the mid-1960s to more recent work on bribery in international business and now, evidently, e-commerce and internet law.
All of these colloquia brought together senior and younger scholars (I confess having benefited from the intellectual exercise in the morning and Burgundy wines and lunches in the afternoon in the 1970s) with practitioners in companies, government and the international agencies. It is not insignificant to note that his efforts at building a community of scholars at CREDIMI included the arrangement of weekly film shows. Philippe Kahn's influence goes wider: For over 30 years, he has been serving as the chief editor of Clunet/Journal du Droit International, the influential and leading French academic journal devoted to developments in international public, economic and commercial law with a strong emphasis on international commercial arbitration, the natural medium for the creation of "lex mercatoria". Philippe Kahn's work has therefore been the ideal of a modern scholar - both incisive individual analysis, collaborative work, often with mentored younger scholars, creation and management of an institutional setting for collaborative team-work and the dissemination ("marketing of ideas") of analysis and insights through an increasingly prestigious and influential academic journal.
The book reviewed constitutes a "Festschrift" or "Melanges" to the honour of this great scholar. It brings together current and former colleagues and associates of Philippe Kahn - all Francophone (with the exception, one should acknowledge such not that usual tolerance, of this reviewer's contribution, in English, on multilateral investment treaties in the global economy). The Francophone circuit includes, evidently, the many scholars and graduate students from Mediterranean and West African countries raised in and by the Dijon school. The list of contributors and subscribers reads like a Who-is-Who in Francophone international public and commercial law.
Philippe Kahn, and many of the contributors and associates of CREDIMI, belong to the influential school of Berthold Goldman which resuscitated the ancient notion of "law merchant" into a modern concept of lex mercatoria, i.e. the idea that international business is transacted in contractual forms that are largely free from direct state intervention and the forms of law provided by the nation state.
These ideas are in a way precursors to the current preoccupation with the role of law in the global economy, a relatively new term that describes a much older phenomenon - the acceleration of national markets into a global economy during prolonged periods of peace and prosperity. Kahn's and his CREDIMI-school's approach are the particularly French perspective on the understanding of cross-border business transactions and, in modern parlance, their "regulatory framework".
They are not dissimilar from the "transnational approach" developed by Philip Jessup and Detlev Vagts /Henry Steiner(Transnational Legal Problems, 1996) in the US, the emphasis on the underlying reality and facts of business law by Heinrich Kronstein in Germany and contemporary scholars such as Hans van Houtte (Leuwen, The Law of International Trade, 1995) or the approach applied by this reviewer (North/South Economic Cooperation and International Economic Development 23 German Yearbook of Int'l Law (1980) p. 59) and his colleagues and students at CEPMLP/Dundee ( www.cepmlp.org /journal), with the idea that international business needs to be studied less through doctrinal concepts flying high above the reality of business transactions, but by an analysis of both the international and comparative national regulatory framework and the much more self-made law emerging out of the contractual forms and models employed by investors, traders and financiers in specific and distinct types of transnational business transactions as well as through newly emerging forms of voluntary self-regulation by businesses both within a corporate organization and among often competing companies, often linked to formal national or supranational (e.g. EU) regulatory efforts.
Such legal realism requires close observation of emerging business practices, often for a long time not evident in scholarly writing and an intense effort at dialogue of scholars with those that create, and apply (and therefore make) law for international business.
But Philippe Kahn, CREDIMI and the Francophone contributors to this tome approach the role of law in the global economy with a particular Gallic spirit. While the impact of globalisation is recognized, sometimes quite grudgingly, the question of the remaining role of the state looms heavily, much more heavily than perhaps in the thinking of comparable scholars in the Anglo-Saxon world. In many, if not most contributions (excluding this reviewer), there are traces of "angst" and nostalgia about the clearly observed decline of the strong nation state - in the French mercantilistic tradition - and the influential, and less state-dependent role of private actors and markets in the global economy.
The first contributions in the "Melanges" deal with the lex mercatoria, both historically and as a contemporary concept to understand the law of international commerce; the second section, led by Charles Leben's discussion of arguments against the validity of stabilization promises in host state/ investment agreements in recent French theory, investigates modern issues of investment protection, including the role of - implied? Fictitious? - consent in modern Treaty-based investor arbitration for regulatory misconduct by states under bilateral investment treaties, NAFTA and the Energy Charter Treaty (B. Stern).
The internet and e-commerce are viewed from the angle of a modern lex mercatoria undermining national regulatory powers (Caprioli, Chamoux). The contributions in the second part of the book are grouped under the heading "departure from sovereignty by inter-state collaboration" - which is partly misleading, as both the lex mercatoria notion and many of the contributions relate less to the hope that intergovernmental regulation will substitute for the fading force of national regulation than to the emerging and much less regulated role of powerful private economic actors (see in particular Farjat).
WTO dispute settlement (Ruiz Fabri), Mercosur inter-state dispute settlement (Olavo Baptista), curiously leaving out the Colonia Protocol which, if effective, would set up a direct investor-state arbitration facility similar to the NAFTA and Energy Charter Treaty, project financing, monetary sovereignty and legal implications of financial markets are the subjects of several contributions. The interrelationship of international mobility and national company law is discussed with respect to freedom of movement versus national incorporation in the EU (Blaise).
Kessedjian presents a very up-to-date survey of anti-corruption efforts dealing not only with the OECD and OAS conventions, but also the civil-remedies approach of a draft Council of Europe convention. Her chapter illustrates the Gallic particularity of an approach towards the corruption issues: Anglo-Saxon scholars (and economists) would view corruption as an issue of social and economic transition and focus on the elimination of corruption opportunities implicit in the interface between an interventionist state and its bureaucracy using the principal-agent model from economic analysis of law. Full privatization, minimization of bureaucratic licensing discretion, transparency and public accountability of public procurement would be called for. Kessedjian, on the other hand, regards the specifically 19th (and perhaps in France and Prussia also 18th) century role of the state and its bureaucracy controlling services then (nor earlier nor necessarily at present) qualified as "public" as given by nature; her solution is a call for moral uplifting and greater prestige for public services as suitable remedies for corruption.
The World Bank organizes a series of "anti-corruption consciousness raising" workshops in developing countries, reflecting this hope that an appeal to morality will be effective (Christian Walser, the former procurement adviser of the Bank, said in a lecture in Dundee: First they have a full-mouthed anti-corruption declaration, and when the Bank experts are gone, it is back to business as usual). It that a return to the so perceived "Golden Age" of the nation state. This unease with the anarchy and power of uncontrolled/uncontrollable private economic actors operating through increasingly global markets without a centralized hierarchical control mechanism (the central bureaucratic state of the last two centuries, in legal theory embodied by Hans Kelsen) is also pervasive in the diffidently positive emphasis by Farjat on the "peace and prosperity" effect of globalisation, and in the much more critical view of Rigaux, here re-playing in effect the unequality and post-colonialism tunes of the "New International Economic Order".
While the existence of private economic power is decried, not much confidence is held with respect to the countervailing power of economic regulation, competition and markets, Rigaux does not really offer a realistic alternative. Construction of such alternative would require an assessment why the socialist and statist models of the 1970s have failed and a comparison of "market" with "state failure". With such emphasis, and nostalgia, for the role of the all-powerful nation state it is rare that the monumental failure of the nation states in organizing a peaceful global economy in the past century is acknowledged (though hinted in Farjat). Anglo-Saxon concepts - such as economic analysis of law (Coase and Posner), the economic and legal dimension of post-privatisation regulation with the need to re-think the 19th century concept of "public services", public choice theory (Buchanan-Tullock), so relevant for international trade/WTO law (Tumlir) - are not part of this discourse.
Friedrich von Hayek, arguably the most influential economist advocating the virtue of the self-regulation through gradual discovery of appropriate legal rules in international commerce and thereby of a modern concept of lex mercatoria, plays no role, except sometimes as a bogeyman, together with the much maligned "Chicago" school. There are ample echoes of the for French academics very influential anti-globalisation sentiments of "Le Monde Diplomatique" and "Le Monde" where endless and defensively diffident suspicions of the machinations of the "Anglo-Saxon" global markets are continuously broadcast. Most of the contributions do not refer much or at all to the emerging power of "non-governmental organizations" and their interface with public opinion and markets - perhaps again reflecting a distinction between the state-oriented French tradition's problem with forces outside the hierarchical order of state organisation and the more anarchic liberalism of the currently dominant Anglo-Saxon societies.
This impressive books highlights the absence - on both sides - of a real dialogue between Francophone and Anglo-Saxon ways of discussing law in the global economy, a reciprocal deafness undoubtedly related to the lack of a requirement of international legal scholars to be fluent in foreign languages. It also supports Karl Marx' notion that while the global economy may be on us, a globally uniform way of viewing, thinking and discussing the legal suprastructure of it is still very far, a tribute to the strength of distinct national cultures confronted with economic phenomena which are essential the same now worldwide.
