This chapter explores the intersection of transnational law with contemporary corporate governance laws and principles. Corporate governance, with its complex array of public and private actors, fits naturally within the modern concept of transnational law as a species of law that "can no longer be viewed through a purely national lens." Financial markets today are global and interconnected and events, such as the 2007-2009 global financial crisis and the COVID-19 crisis, exemplify the risk of contagion across those markets. Not only can corporate governance problems transcend national boundaries, so too can their solutions, which often involve regulatory efforts that operate at a transnational level. The chapter explores, from a transnational perspective, the transmission of laws and norms that are designed to constrain directors’ conduct and enhance corporate accountability. It focuses on two key examples of such accountability mechanisms-fiduciary duties and corporate codes. The chapter examines, for example, the global transmission of corporate governance and shareholder stewardship codes. These codes, which are a relatively recent phenomenon, play an important role as “norm creators.” The chapter assesses the transmission of laws and norms against the backdrop of convergence and path dependence theories of corporate governance.

This chapter will use the historical evolution of fiduciary norms in Japan and East Asia to examine the intersection of fiduciary law and transnational legal ordering theory. Various strands of fiduciary notions arrived in East Asia as part of modernization effort beginning in the late nineteenth century. The civilian regulation of conflicted transactions and duty of care was introduced in Japan, South Korea, and Taiwan as part of Civil Code and Commercial Code, which was followed by statutory introduction of common law trust in early twentieth century, and American corporate governance theory after World War II. Singapore and Hong Kong adopted English common law and equity jurisprudence along with legislations that follow UK and Commonwealth models, which were frequently updated to meet the demands of international financial market. While tensions among common law, civil law, and indigenous norms were conspicuous during the early phases of modernization and reception, more recent decades of globalization have seen greater scale and dynamics of transnational interactions, most notably the rise of UK-style soft law initiative. Throughout the regional history, fiduciary norms have been shaped by shifting colonial pressures and economic hegemony, wars, revolutions, and financial crises, as well as legislative imitation and academic learning. By way of conclusion, this chapter argues that while fiduciary law presents a rich field for exploring process of transnational legal ordering, the theory of transnational legal ordering provides a valuable framework to understand both historical and contemporary evolution of fiduciary law both in individual jurisdictions and across jurisdictional borders.

In recent years, fiduciary law has moved toward the center of scholarly attention in the common law world.1 In spite of its “elusive” nature,2 enough instances of fiduciary relationships occur across a wide variety of legal areas that many – with good cause – describe it as a distinctive field.3 Courts as well as scholars in common law jurisdictions deal concepts and ideas concerning fiduciary law back and forth.4 Although civil law countries have no tradition of the trust as a legal institution,5 courts and scholars alike term relationships based on some kind of personal or professional trust “fiduciary.”6 German law subjects guardians,7 trustees in bankruptcy,8 attorneys,9 and others to a specific set of fiduciary duties, the most important of which is a duty of loyalty.10 France has introduced “la fiducie,” a substitute for the common law trust.11 Indeed, civil law countries have long combined property and contract law in order to fashion substitutes for the common law trust. Contract-based Treuhandverhältnisse – that is, relationships of trust – have been a staple part of the German legal discourse for several decades, if not centuries.12 And in recent years, the trust as a legal institution is gaining ground in civil law jurisdictions, following national recognition of the Hague Trust Convention by countries such as Italy and the Netherlands.13

The chapter focuses on the treatment of causation in Book VII on tort law of the Chinese Civil Code. After some remarks on the role that legislation can play in governing causation, the chapter reviews in a comparative perspective the location, breadth and content of general and special provisions on causation in the CCC. The analysis will show that what the CCC says on causation, and, perhaps more importantly, what it does not say, demonstrate a deep awareness of the relentless dynamics underlying tort law discourses and practices. Provisions on causation in the CCC strike a well-balanced compromise between the need of providing clear statutory guidance and the opportunity of allowing courts with substantial room to maneuver in light of the specific circumstances of each case.

The chapter focuses on the debate over the aims of tort law, both in China and in the West. It starts by reviewing the intellectual history of discussions over tort law aims. It then demonstrates that these debates are often unaware of both the empirics of tort law and the cultural frameworks that sustain the adjudication processes of tort law disputes, inside and outside courtrooms. This is a major gap, insofar as both the empirical and cultural dimension are crucial in order to put any vision of the aims of tort law within its own proper context. In this perspective, the paper tries to shed light on the variety of factors that should be considered in framing whichever theory on the aims of tort law.

The rule of law, it has been said, is at best a vague concept and at worst a myth. Yet as one looks at any given society, it is a notion that takes on local meaning, in the Middle East and North Africa no less than elsewhere. In this chapter, it is suggested that there is a significant reality to the concept of the rule of law in Muslim nations but that much of that local meaning turns not on substantive rules or the formal organization of institutions so much as the procedures followed and the cultural presumption that inform the finding of facts. By tracing these features through concrete cases and related sources, we can see that Islamic concepts of the rule of law are mostly about process and the assessment of persons, rather than of material evidence and the structure of judicial power. As such, we can also see that when various Muslim cultures encounter one another and the legal systems of the West, some misunderstanding of why failing to appreciate that no cases are thought to be identical and that persons take precedence overs ‘facts’ can readily lead to misperception and misguided encounters.

This chapter aims to identify and analyze Western influences – French, German and English – that played into the conception of contractual consent emanating from the PRC CC provisions on contracts. Looking to the Chinese treatment of contract formation, contract interpretation, mistake as to present or future facts, good faith and abuse of rights, contractual fairness in the context of standard form contracts and some aspects of contract remedies, it is determined that the Chinese code provisions on contract on the whole clearly motion to a continental (French/German) rather than English model, the only exception perhaps being with respect to the duty to inform, which the Chinese code refrains from explicitly endorsing. As between French and German influences, moreover, the PRC CC seems more heavily suffused with the latter, it coming closest to French law only with respect to mistake as to present facts and certain aspects of good faith – at least insofar as the Chinese conception of delictual liability can be analogized to the French, which remains to be seen.

The chapter examines the corporate governance institutions that developed during the Legal Modernization Era. It analyzes the traditional corporate governance mechanisms, both internal and external to the firm, that were embraced in China and adapted to domestic political–economic circumstances. The chapter discusses how China’s superficially convergent, investor-oriented corporate governance framework actually diverged in practice. It illuminates the political functions of law, showing how the corporate governance framework was ultimately directed to support the reconsolidation of political–economic powers and the shift toward state capitalism. The chapter offers comparative insights drawn from alternative systems of corporate governance and analyzes the implications of the Chinese framework for investors in the Chinese market.

Ireland’s history within the United Kingdom is, not to put too fine a point upon it, complicated. The question of the shared constitutional history of Ireland and Great Britain is more complicated again by the uncodified nature of the constitution of the United Kingdom. This chapter explores the constitutional links between Ireland and the United Kingdom after 1800. It does so by examining both the experience of constitutionalism in Ireland, and the manner in which this experience was understood and how it influenced constitutional development in the United Kingdom.

Modern legal systems generally have a category of obligations known variously as restitution, unjust enrichment, unjustified enrichment or some variant of these. Whichever legal system they are found in, they have a common source in Roman law: the stoic idea that enrichment at the expense of another is unjust, obligations quasi ex contractu and the different forms of non-contractual condictiones. This chapter traces the development of the ideas from Justinian to the modern day, picking up ideas of equity along the way. It focuses on the shifting principles underlying the category, typified by its name, rather than its concrete instantiations, aiming to trace the largely unthinking patterns of borrowing from one legal system to another and from one language to another.

In a tribute to the work and writings of Professor John Bell, leading scholars present essays on factors affecting the course of ‘legal development’ in common law and civilian systems. This introductory chapter draws on their essays and John Bell’s scholarship to reflect on what is distinctive about comparative legal research. It shows how a comparative enquiry expands the boundaries of the law’s domain beyond ‘black-letter’ legal knowledge to embrace the reasons and context for legal development. It reminds us that a comparative law enquiry includes looking at the law’s roots in society, that is, at the law both in action and in the books, the legal institutions, legal cultures, and the extra-legal environment. References to the authors’ case studies in tort, contract, legal history and judicial studies illustrate the discussion of the key features of comparative law research.

This chapter argues for a concept of ’roundabout reasoning’ as a useful tool for comparative legal studies for the movement and adaptation of legal objects, in understanding domestic law, and in critiquing legal development. Roundabout reasoning is defined as a process to resolve potential conflict between two or more objects by (a) a simple method of sequencing their consideration; (b) where actors apply it autonomously; and (c) consideration takes place through a neutral third space without reference to their earlier state.

This chapter, stimulated by Professor Bell’s contribution to legal education (as well as to comparative law and legal reasoning), tackles the question of whether traditional doctrinal law has anything to offer, intellectually, to disciplines outside law. That is to say, does law export knowledge to other disciplines or does it just import knowledge? Despite John Bell’s positive agenda asserted some eighteen or so years ago, this examination presents a gloomy picture. This is not to argue that law faculties are making no contributions to the Academy in general – indeed, the opposite is true. But such contributions are largely founded on knowledge imported into law faculties. Comparative lawyers, or some of them such as Professor Bell, offer some hope.

This chapter explores the influence of the rhetorical tradition on the early modern common law of interpretation. It focuses on William Fulbecke’s A Direction or Preparative to the Study of the Lawe (1600), a guidebook that instructed law students on principles of legal interpretation. Fulbecke was writing at a time when interest in interpretation was particularly intense, but his discussion is striking for its unusual sophistication. The chapter argues that Fulbecke’s account was strongly influenced by works on rhetoric, the art of speech and persuasion. Fulbecke was a pioneering comparative lawyer, and would have known that rhetoric was often used to aid interpretation by lawyers of the ius commune. The chapter demonstrates that rhetorical ideas also pervaded the English law of interpretation. Their influence is clear in Fulbecke’s work: Fulbecke aimed to set out a clear method of legal interpretation for beginners, based on the rhetorical works that students encountered at school and university. This chapter broadens our understanding of the relationship between the common law and the rhetorical tradition, demonstrating the importance of understanding the history of English law in its wider intellectual context.

This chapter examines vicarious liability, that is, liability in tort for the tortious acts of others, and the insights that may be gained from a comparative law perspective. John Bell’s work on vicarious liability was cited by the UK Supreme Court in Cox v. Ministry of Justice [2016] UKSC 10, in support of its view that vicarious liability could be justified where the defendants had, in the exercise of their mission or enterprise, placed the tortfeasor in a position where the commission of the tort was an inherent risk of the activities assigned to them. This chapter examines comparatively the role ’risk’ plays in contemporary vicarious liability discourse. While civil law systems such as France have long embraced notions of risk, the common law courts have been slower to respond. Since 2000, however, UK and Canadian case law has indicated a willingness to move in this direction. In contrast, the Australian courts continue to resist the lure of risk- based analysis as an explanation and justification for the imposition of vicarious liability. Is relying on risk as a justification a ’risky business’ or inevitable if one wishes to expand this doctrine to meet the needs of meritorious litigants?