Domestic courts frequently apply foreign law. For example, the forum's choice-of-law rules may require a court to apply foreign law, or a party may expressly base a claim or defense on foreign law. Private international law (or "conflict of laws") provides principles governing many aspects of the way courts should identify and interpret foreign law.
Scholars of international relations and global governance are increasingly interested in the transnational commercial arbitration system. So far, they have tended to characterize the system as a form of private global governance. However, using a combination of empirical and legal analysis, this article draws attention to the critical role of the state in the transnational commercial arbitration system, and shows that both rule-making and enforcement in the system depend largely on interactions between private and public actors. By treating arbitration as a form of private governance, scholars run the risk of obscuring these interactions and hindering their understanding of how transnational economic activity is governed. This article therefore argues for a modest reorientation of global governance scholarship on transnational commercial arbitration in a direction that focuses more closely on private-public interaction. More broadly, this article suggests that understanding interactions between private and public actors is a key to understanding global governance in general, and it raises doubts about the analytical desirability of a sharp distinction between private and public forms of global governance.
Functionalism is historically one of the most influential approaches to comparative law, and perhaps also the most controversial. This Article argues that legal origins scholarship – though produced primarily by economists, not legal scholars – has a close affinity with the functionalist approach to comparative law. As such, legal origins scholarship puts into relief the promises and perils, the strengths and weaknesses, of functionalism. Legal origins scholarship therefore deserves the careful and critical attention of comparative legal scholars as they deliberate over the place of functionalism in their field's future. This Article, contributed to a symposium on "Evaluating Legal Origins Theory," draws out some of the implications of legal origins scholarship for the functionalism debate. It does so by focusing on three characteristics shared by legal origins scholarship and functionalist comparative legal scholarship: a quest for better legal solutions to societal problems; a need to rely on causal inference; and a need to consider the cultural, economic, political, and social context within which legal institutions exist. Among other things, the Article proposes a refined concept of "function" that distinguishes between the intended functions and actual consequences of legal institutions. The Article concludes that a new functionalism that combines a qualified embrace of the "better solutions" impulse with the refined concept of function, and that takes causal inference and contextual factors seriously, would have the potential to make valuable contributions to our understanding of law and to the improvement of legal institutions.
