Vol. 9 No. 9 (September 1999) pp. 411-414.

EMERGING LEGAL CERTAINTY: EMPIRICAL STUDIES ON THE GLOBALIZATION OF LAW, by Volkmar Gessner and Ali Cem Budak (Editors). Aldershot, England: Dartmouth Publishing Company, 1998. A series published for The Onati International Institute for the Sociology of Law. 456 pp. Cloth $80.95. Paper $33.95. Includes bibliographical references and index.

Reviewed by Michael C. Tolley, Department of Political Science and the Law, Policy and Society Program, Northeastern University.

Globalization is working revolutionary changes in the nature of law. These changes necessitate a closer look at the social institutions and norms employed to organize the cross-border affairs of both businesses and individuals. Volkmar Gessner and Ali Cem Budak, editors of EMERGING LEGAL CERTAINTY, bring together several recent works that focus on the legal mechanisms for coordinating cross-border interactions in the areas of debt collection, banking, insurance, social security, and family law. What gives this edited volume added value are the insightful theoretical chapters in the latter part of the book that succeed in linking the empirical findings with some of the broader questions being raised today about the role of law in the era of globalization.

Some of the key questions that naturally arise when investigating globalization, international commerce, and law are clearly presented by one of the contributors: How does the international business community utilize the existing legal infrastructures to regulate and to resolve disputes which might arise from these activities? How do the needs of international commerce affect the development of law as an element of the "changing global order"? How is the intercultural make-up of cross-border exchanges structured, and how does it affect the development of legal infrastructures that are used by international commercial exchanges? Finally, how is this law, in relation to national cultural systems, constructed and from which sources does it obtain its legal and political legitimacy? (p. 350). The scholarship that appears in EMERGING LEGAL CERTAINTY goes a long way toward addressing this ambitious research agenda.

Many scholars have argued that the processes of globalization, including global flows of capital and people, increased cross-border commercial relations, and the advent of new information technologies, are eroding the traditional concepts of sovereignty and national law and creating a new global legal order (Teubner 1997). The form and substance of this new order are better understood in public international law (including human rights law) (Tate & Vallinder 1995) than in private international

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law. "Our focus," write Volkmar and Budak, "is not on state actors but on individual and business actors and horizontal relations between them regulated by contract, tort, and family law" (p. 1). Their decision to focus on horizontal relations, commissioning empirical studies of debt collection, international banking, the reinsurance market, and cross-border child custody and child maintenance, means that this edited volume contributes to an emerging literature on the globalization of law (Shapiro 1993; Symposium,1999).

EMERGING LEGAL CERTAINTY stems from a research project conducted at the Centre for European Legal Policy at the University of Bremen, Germany. It is the second publication to emerge, the first titled FOREIGN COURTS: CIVIL LITIGATION IN FOREIGN LEGAL CULTURES (1996), edited by Volkmar Gessner. Of the twelve contributors to EMERGING LEGAL CERTAINTY, eight are lawyers, two are sociologists and two are political scientists.

The contributions to this book are arranged into four parts. Part One, Business Interactions, consists of five chapters: "Cross-border Debt Collection: Examples of Turkey and Germany," Ali Cem Budak; "Comments on Ali Cem Budak's Contribution: International Litigation and Arbitration in Turkey," Hasan Nerad; "Back to the Courtroom? Developments in the London Reinsurance Market," Christine Stammel; "Third Cultures versus Regulators: Cross-border Legal Relations of Banks," Klaus Frick; and "The Political Economy of the Chamber of Commerce of Milan: Towards a New 'Universitas Mercatorium'," Vittorio Olgiati.

Part Two, Small People's Claims, consists of three chapters: "Cross-border Maintenance Claims of Children," Kirstin Grotheer; "Cross-border Legal Issues Arising from International Migrations: The Case of Portugal," Pierre Guibentif; and "Obtaining Information on Foreign Legal Systems," Andreas Petzold. Parts Three and Four explore the theoretical issues raised by the empirical studies in the early chapters. Part Three, Law and the New Legal Order, includes two chapters: "Global Legal Interaction and Present-day Patterns of Globalization," Anthony G. McGrew and "Reflexive Legitimacy in International Arbitration," Reza Banakar. And finally, included in Part Four, Conclusions, are the following chapters: "Binding Territoriality and Functionality? Globalization Meets the Law," Jurgen Neyer and "Globalization and Legal Certainty," Volkmar Gessner.

The empirical studies appearing in the first two parts of the book employ fairly traditional approaches in the study of law and society. Data on various aspects of cross-border legal behavior were gathered from interviews and questionnaires issued to those involved in these transactions. Most of the interviews and surveys were conducted after 1994. The results are integrated well within the text and, since each contributor's institutional and e-mail addresses are provided at the end of each chapter, interested persons should have no problem obtaining access to the raw data.

The empirical studies contribute in one way or another to the idea that a "new"

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concept of legal certainty is emerging from the present globalization processes. In an effort to capture this new concept, the editors develop a model they call Patterns of Legal Globalization (p. 7). The model presumes different degrees of state control over different kinds of global legal interaction ranging from complete state control to control by autonomous structures outside of state-based legal machinery. The studies make clear that there are a variety of ways in which cross-border legal interactions are being handled. Although some cross-border activities were observed to be subject exclusively to "third cultures," that is, the autonomous, non-state structures which the literature maintains are frequently used to bridge legal and cultural barriers, an important finding was that many activities are still controlled by nation-state legal structures or by a mix of state and non-state components of the global legal order.

The implications of these findings are explained by Gessner in the concluding chapter: "Our empirical research for this project has discovered a colourful patchwork of structures which help people in their legal dealing across borders.... We recognized a changing role of the state but could not share the opinion of those authors who tend to disregard state-created structures in the new and rapidly developing global environment" (pp. 427-428).

This book points out that a new concept of legal certainty is emerging as a consequence of this "patchwork of structures" and that the extent to which legal certainty is achieved depends on a number of structural and cultural variables.

One obvious strength of this edited volume is in the richness of the empirical studies. The decision to commission studies of insurance, debt collection, banking, social security, and child-custody/child-support was a good one since these areas of law are fairly typical of the kinds of cross-border contacts taking place between businesses and individuals. Also, the decision to make sure that a wide variety of countries were studied (Germany, England, Portugal, Italy, Turkey, Czech Republic, Slovakia, and the United States) means that the data and observations are as "global" as one can expect in a 450 page book.

Another notable feature is the care the editors take to link the empirical findings with the latest research and theories on the globalization of law. The chapter by Anthony G. McGrew, titled "Global Legal Interaction and Present-day Patterns of Globalization," provides a superb analytical framework, one that, in his words, "locates processes of global legal interaction with a more general enquiry into the form of modern globalization and its implications for sovereign statehood" (p. 341). Reza Banakar follows with an equally thoughtful chapter on the troubling question of legitimacy within a global legal setting.

Most readers will agree that the contributors to EMERGING LEGAL CERTAINTY have approached their topics after rigorous research and much sober thought. And most will be interested in the findings challenging some of the leading theories on the globalization of law. But some, including the reviewer, may object to the book's organization. Readers new to the

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subject of legal globalization might get more out of the empirical studies in Parts One and Two if they read the two fine chapters in Part Three first. By asking the broader questions and surveying the literature, these two chapters prepare readers for the rich empirical studies much better than the short Introduction. By delving first into the empirical studies, many readers will not know why these studies are important, what theories are being tested and what gaps in the literature are being filled until quite late in the book.

Despite this criticism, it is important to point out that EMERGING LEGAL CERTAINTY succeeds in many ways. For starters, it brings together some of the best socio-legal scholarship on the subject. And last, but by no means least, it demonstrates that there are new and fruitful areas of research that should keep those interested in the intersection of law and society busy for years to come. Academic lawyers and socio-legal scholars, who are this book's audience, are sure to be encouraged to test whether the social institutions, norms, and practices observed by these researchers as supporting different kinds of cross-border legal interactions are unique or typical.

REFERENCES

Gessner, Volkmar, ed. 1996. FOREIGN COURTS: CIVIL LITIGATION IN FOREIGN LEGAL CULTURES. Aldershot, England: Ashgate Publishing Company.

Shapiro, Martin. 1993. "The Globalization of Law," INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 1: 37-64.

Symposium. 1999. "The Rule of Law in the Era of Globalization," INDIANA JOURNAL OF GLOBAL LEGAL STUDIES. 6: 421-683.

Tate, C. Neal and Torbjorn Vallinder. Editors. 1995. THE GLOBAL EXPANSION OF JUDICIAL POWER. New York: New York University Press.

Teubner, Gunther, ed. 1997. GLOBAL LAW WITHOUT A STATE. Aldershot, England: Dartmouth Publishing Company.