Behavioral Comparative Law: Its Relevance to Global Commercial Law-Making
This is a book chapter written for a British Society of Legal Scholars funded conference held at Durham University Law School. It develops a framework by which to evaluate the making of commercial law at the global level. It offers an approach to evaluating the process by which primarily intergovernmental organisations produce commercial law. The approach grounds in both behavioural science and comparative law. The focus is mainly but not exclusively on global rule makers such as the United Nations Commission on International Trade Law (UNCITRAL) and the International Institute for the Unification of Private Law (UNIDROIT). It articulates what appears to be an emerging school of comparative law, which I call behavioural comparative law or BCL for short. BCL has the potential to advance substantially the ability to explain why commercial law is produced the way it is at the global level. The discussion will lead us to findings about the methods that global commercial law makers use, how they choose areas of law to work on, and how they go about doing their work. This chapter finds that because of the cognitive limitations on the participants in the global commercial law-making process, when feasible, global commercial law makers should use methods of cost-benefit analysis when evaluating project selection or get as close to they can in doing so when cost-benefit analysis is not feasible. It may not usually be feasible, due to methodological constraints and the lack of data, though other quantitative approaches might be able to substitute so long as they produce reliable results. The chapter also tentatively explores how cognitive constraints may be at work at the level of implementation of global commercial law at the domestic level.