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Chapter 1 The World Scenario and the Approximation of Law1

Introduction1

Ⅰ The Emergence of a Global Economic Order1

Ⅱ Political Governance in a Global Society4

A The Crisis of the Concept of the Nation State4

B Governance in a Transforming Society6

C The Regionalization of Governance7

Ⅲ The Legal Impact8

A The ‘Import' and ‘Export' of Laws8

B Standardization of National Law10

C International Law and the Emergence of a Contemporary Lex Mercatoria11

Ⅳ Conclusion15

Chapter 2 Vehicles for Harmonization of Law17

Introduction17

Ⅰ Soft Law17

A The Adoption of Soft Law in International Relations17

B Soft Law: The Forms of Its Incorporation in the International Legal System19

C The Nature of Soft Law20

D The Efficacy of Soft Law as International Law21

E Soft Law and Its Links with Other International Law-Making Processes22

Ⅱ Customary International Law-Making23

A The Definition and Creation of Customary International Law23

B The Ability to Create Customary Law26

C Identification of Relevant State Practice for the Creation of Customary Law27

D The Concept of ‘Instant' Customary Law28

E Treaties as a Source of Customary International Law29

Ⅲ Multilateral Treaties30

A International Treaty-Making30

B Reservations: An Obstacle for the Uniform Application of Treaties32

Ⅳ International Law-Making and the Activities of International Organizations34

Ⅴ The Role of Multinational Enterprises in the Harmonization of Laws37

Ⅵ The Influence of Developments in Information Technology on the International Law-Making Process38

Ⅶ Conclusion: Towards a Formless International Legal Corpus39

Chapter 3 Regionalization and Standardization of Law41

Introduction41

Ⅰ Trade Oriented Integration: An Historical Approach41

A Ancient History to the Merchant Guilds and the Development of Cities41

B The Impact of Islam44

C The Role of the Jews45

D Colonialism45

E The Benelux Economic Union48

Ⅱ An Historical Overview of Regional Integration: The Case Studies of the EU and the Mercosur49

A European Union49

B Mercosur53

Ⅲ The Process of Regionalization55

A The Causes of Regional Integration55

B Types and Characteristics of Regional Integration Initiatives61

1 Free Trade Areas61

2 Customs Unions and Deeper Forms of Regionalism61

3 Regional Institutions62

Ⅳ Regionalism and Globalization63

A WTO Requirements on Regional Trade Agreements63

1 Article XXⅣ64

2 Enabling Clause64

B Conflicts between Regional Integration and the WTO Policy on Global Trade Liberalization65

C Open Regionalism70

Ⅴ Conclusion: The Co-existence of Regional and Multilateral Integration72

Chapter 4 Regional Corporate Law Harmonization: The EU and the Mercosur73

Introduction73

Ⅰ Historical Background74

A European Union74

B Mercosur75

Ⅱ The Driving Forces of Harmonization of Company Law77

A The Case Study of the EU and the Mercosur77

Ⅲ Primary Legislation80

A EC Treaty Provisions: Freedom of Establishment and the Mutual Recognition of Companies80

B Mercosur: Asuncion Treaty Framework and Member States' Domestic Legislation87

Ⅳ Secondary Legislation91

A EU Vehicles for Company Law Harmonization91

B The EU Directives on Company Law Harmonization96

C Mercosur Vehicles for Law Harmonization102

D Mercosur Secondary Legislation in Corporate Matters106

Ⅴ The Creation of Regional Corporate Bodies108

A The Establishment of Transnational European Bodies: The EEIG and the ‘Societas Europaea'108

B Establishment of Transnational （Bi-national） Corporate Bodies in South America114

Ⅵ Conclusion: The Learning Process of Regional Corporate Harmonization117

Chapter 5 The Infrastructure of Capital119

Introduction119

Ⅰ International Cross-Border Handling of Capital: An Overview119

Ⅱ Cross-Border Transactions in the European Union127

A Historical Development and Legal Nature of EC Law on Movement of Capital127

B EC Primary Provisions on Movement of Capital129

C The EC Directive on Free Movement of Capital133

D EC Secondary Legislation on Cross-Border Payments and Transfers134

Ⅲ Conclusion137

Chapter 6 The Phenomenon of Development: International and Regional Approaches to Banking and Financial Law139

Introduction139

Ⅰ Freedom of Establishment140

A Globalization, Consolidation and Conglomeration140

B New Entrants143

C Regulatory Responses144

Ⅱ Main Objectives of Financial Sector Regulation145

A Prudential Conduct of Business and Systemic Regulation145

B Prevention of Financial Crime and Anti-Money-Laundering Legislation147

C Promotion of Adequate Competitiveness147

Ⅲ The Approach of Financial Regulators to the New Financial Scenario148

A Liberalization of National Financial Regulations148

B Cross-Border Financial Trade: The Establishment of Banking and Financial Standards, Mutual Recognition and ‘Passport' Systems149

C The New Institutional Structure of Financial Regulation as a Response to Financial Convergence150

D The Concept of Ring Regulation （Abstract）152

Ⅳ International Regulations152

Ⅴ The Case Study of the EU: The Passport System and the Route to a Single Market155

Ⅵ Conclusion158

Chapter 7 Theories of the Company161

Introduction161

Ⅰ The Regulation of Companies and the Justification for Corporate Governance162

Ⅱ Contractualism163

A Aggregation of Individuals: Legal Contractualism163

B A Nexus of Contracts: Economic Contractualism166

1 Managerialism168

2 The New Economic Theory of the Firm169

3 Contractualism: A Critique169

C Contractual Justification for Corporate Governance170

1 The Shareholder as Regulator171

Ⅲ Communitaire Theories172

A Communitaire Justifications173

Ⅳ Concessionary Theories174

A The Company as a Mere Fiction174

B The Body Politic: Theories of Constitutionalism175

1 Corporate Constitutionalism175

2 The Free Floating Company: The Dual Concessionary Theory177

C Justifications from a Concessionary Perspective178

Ⅴ Conclusion179

Chapter 8 Corporate Governance181

Introduction181

Ⅰ The International Corporate Environment and the Development of Corporate Governance181

A Corporate Concentration181

B Negative Externalities and the Operations of Multinational Corporations183

C Corporate Social Responsibility183

D Corporate Control and Issues of Corporate Governance184

E Transparency and the Necessity of International Standards of Corporate Governance185

Ⅱ Corporate Governance: The Case Study of the UK186

A Background186

B The Combined Code 2003188

C Legal Status of the Combined Code 2003 andComplementing Legislation190

Ⅲ Corporate Governance Developments in the EU191

Ⅳ International Initiatives in Terms of Corporate Governance193

A The OECD Principles of Corporate Governance 2004193

B International Corporate Governance Network （ICGN）194

C Governance of Corporate Groups and Multinational Enterprises194

Ⅴ Enforceable Corporate Governance Legislation: The Case Study of the US198

Ⅵ Corporate Governance in Latin America: The Case Study of Brazil199

A Origins of Corporate Governance in Brazil199

B Brazilian Initiatives on Corporate Governance: Background202

C The Brazilian Institute of Corporate Governance and the Code of Best Practice203

D The Policy of ‘Bovespa' and the New Market204

E CVM Recommendations205

F Initiatives Involving Corporate Governance for State-Owned Corporations205

G OECD White Paper on Corporate Governance in Latin America206

Ⅶ Conclusion207

Chapter 9 International Legal Standards and the Inclusion of Emerging Countries in the Globalized Order: The Case Study of Brazil209

Introduction209

Ⅰ The Contemporary Brazilian Democratization Process210

Ⅱ The Consolidation of Brazilian Institutions212

Ⅲ Brazil's Active Role as a Leader of Emerging Countries withinInternational Organizations and the WTO215

Ⅳ Legal Developments in Brazil and the Ratification of International Conventions216

Ⅴ Conclusion221

Ⅵ Interview with Dr Fernando Henrique Cardoso （President of Brazil from 1995 to 2003）, recorded on 16 August 2005 at his residence in Sao Paulo222

Conclusion Legal Pluralism and the Creation of Standards within the Process of Globalization: Analytical Summary and Theoretical and Practical Implications237

Ⅰ Main Findings237

A Approximation of Law in the Global Arena237

B International Multilateral Law-Making and Its Vehicles239

C Contemporary Issues Regarding Regionalism and Multilateralism242

D Movements of Capital and Legal Persons245

1 Capital Movements and Financial Regulation245

2 Movements of Legal Persons and the Harmonization of Corporate Law249

3 Harmonized Corporate Vehicles250

E The Role of Corporations in the Global Society251

1 Corporate Governance and Social Responsibility251

F Inclusion in the Global Scenario: How Emerging Countries Are Coping with the Global Order253

Bibliography255

Index269