There can be little doubt that foreign law has influenced the development of South American private law and that this continues to be the case nowadays. However, this chapter shows that even from the earliest stages of their historical development, these states did not merely copy legal solutions created elsewhere when receiving foreign influences. We adopt a historical perspective and a broad notion of legal transplants to expose foreign law’s influence over the shaping of South American private law and critically evaluate some dominant narratives. First, we analyse the various ways they have influenced the drafters of South American Civil Codes throughout the different waves of codification, as well as the strategies adopted. Afterwards, the inquiry moves to some particular subjects of South American contract law and traces various key shifts that occurred when shaping a liberalisation which, during the nineteenth century, went further than the contemporary European legislation: for instance, taking inspiration from Bentham. After that, we show an inverse movement during the last decades of the twentieth century, directed towards developing a more social conception of contract law, inspired mostly by the German and Italian Civil Codes, though not followed by all jurisdictions. It is concluded that although different European legal systems have informed South American private law, the result is an original blend that is a product of both the creative character of the solutions and the inspiration taken from sources not usually adopted elsewhere in the field of legal transplants.

Upon the enactment of Chinese Civil Code, the previous rules that allowed for enlarged state power to annul contracts were dropped. Chinese law has gone one step further in promoting freedom of contract. The validity rules have been streamlined and the previous contradictory and inconsistent treatment between civil juristic acts and contracts, state and private parties eliminated. However, the new legislative technique will unavoidably facilitate asset stripping, the very reason that the paternalistic rules were in place. Through a historical, doctrinal, and logical lens, we will show why there can be no effective model of a neutral set of validity rules that deals with state-owned enterprises in a less than free and competitive market. The only way to make it work is to have SOEs exit most of the competitive industries and focus on areas that serve the policy goals. Also, paternalistic rules concerning the validity of a contract in trading state-assets should be enacted either in the Civil Code or through special legislations and applicable to government, state-owned enterprises and private parties alike

A central charge against T. H. Green’s conception of positive freedom is that it confuses freedom and social justice. Rather than illuminating and elucidating the meaning of liberty, Green, so the criticism goes, under the disguise of a definition, recommends social ideals and principles such as social justice. The validity of such arguments is not the focus of my concern. I argue, instead, that contemporary efforts to defend social legislation, the welfare state, and socialism from the claims of negative freedom overlook the important interplay between context, conceptual mutability, and conceptual relationality in the construction of normative political arguments. Green’s conceptualization of positive freedom unveils just such interplay. To reclaim the vital conceptual-normative role of positive freedom in the tradition of liberalism and its contemporary discourse is the task of this paper.

The chapter outlines and commercial and legal context for the subject matter of the book. Pivotal to the context of commercial law during the period to book covers was Britain’s dominant role in international trade and finance for a significant part of it. Commodities traded in the organised markets in London and Liverpool often set world prices. International trade was financed through London-based banks. Trading firms in Britain or with links to it imported raw materials to Europe and distributed exports. The law furnished a broad framework within which this commercial and financial activity took place. During the period state regulatory law was at a minimum and parties and markets were free to engage in private law-making. Lawyers and the courts were kept at bay, with the bulk of disputes being dealt with through private dispute settlement in the form of arbitration. When courts were involved, n the main they lent support with principles of party autonomy, a clear preference for certain and predictable rules and a supportive disposition. When legal difficulties were encountered, these were fairly readily surmounted by contractual or private arrangements. Overall, the law cast few shadows over profit making.

In a liberal political regime, individuals are accorded a basic right to private autonomy. Individuals are assumed to be the best judges of their own interests in most contexts, under appropriate conditions of rationality. They can thus enter into legal relationships with others and shape the content of those relationships in the form of specific rights and obligations. Private autonomy supports the recognition of the right to arbitration. Private parties should be entitled to opt for arbitration to settle controversies involving their own interests. Arbitration, moreover, offers potential advantages over litigation in court, having to do with specialization and expertise, procedural flexibility, speed, privacy and confidentiality. Arbitration is grounded in private autonomy, not on utilitarian considerations. The right to arbitration is not absolute, of course. The state is authorized to place restrictions on it, in the name of public interests and values. But the state bears a burden of justification.