Revisiting the Autonomous Contract - Transnational contract law, trends and supportive structures
Ralph Amissah *

2. Common Property - advocating a common commercial highway

Certain infrastructural underpinnings beneficial to the working of the market economy are not best provided by the business community, but by other actors including governments. In this paper mention is made for example of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958), which the business community regularly relies upon as the back-stop for their international agreements. Common property can have an enabling value, the Net, basis for the “new” economy, would not be what it is today without much that has been shared on this basis, having permitted “Metcalf's law” 10 to take hold. Metcalf's law suggests that the value of a shared technology is exponential to its user base. In all likelihood it applies as much to transnational contract law, as to technological networks and standards. The more people who use a network or standard, the more “valuable” it becomes, and the more users it will attract. Key infrastructure should be identified and common property solutions where appropriate nurtured, keeping transaction costs to a minimum.

The following general perspective is submitted as worthy of consideration (and support) by the legal, business and academic communities, and governments. *(a)* Abstract goals valuable to a transnational legal infrastructure include, certainty and predictability, flexibility, simplicity where possible, and neutrality, in the sense of being without perceived “unfairness” in the global context of their application. This covers the content of the “laws” themselves and the methods used for their interpretation. *(b)* Of law with regard to technology, “rules should be technology-neutral (i.e., the rules should neither require nor assume a particular technology) and forward looking (i.e., the rules should not hinder the use or development of technologies in the future).” 11 *(c)* Desirable abstract goals in developing technological standards and critical technological infrastructure, include, choice, and that they should be shared and public or “open” as in “open source”, and platform and/or program neutral, that is, interoperable. (On security, to forestall suggestions to the contrary, popular open source software tends to be as secure or more so than proprietary software). *(d)* Encryption is an essential part of the mature “new” economy but remains the subject of some governments' restriction. 12 The availability of (and possibility to develop common transnational standards for) strong encryption is essential for commercial security and trust with regard to all manner of Net communications and electronic commerce transactions, vis-à-vis their confidentiality, integrity, authentication, and non-repudiation. That is, encryption is the basis for essential commerce related technologies, including amongst many others, electronic signatures, electronic payment systems and the development of electronic symbols of ownership (such as electronic bills of lading). *(e)* As regards the dissemination of primary materials concerning “uniform standards” in both the legal and technology domains, “the Net” should be used to make them globally available, free. Technology should be similarly used where possible to promote the goals outlined under point (a). Naturally, as a tempered supporter of the market economy, 13 proprietary secondary materials and technologies do not merit these reservations. Similarly, actors of the market economy would take advantage of the common property base of the commercial highway.

 10. Robert Metcalf, founder of 3Com.

 11. US Framework for Global Electronic Commerce (1997) http://www.whitehouse.gov/WH/New/Commerce/

 12. The EU is lifting such restriction, and the US seems likely to follow suit.

 13. Caveats extending beyond the purview of this paper. It is necessary to be aware that there are other overriding interests, global and domestic, that the market economy is ill suited to providing for, such as the environment, and possibly key public utilities that require long term planning and high investment. It is also necessary to continue to be vigilant against that which even if arising as a natural consequence of the market economy, has the potential to disturb or destroy its function, such as monopolies.

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