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Lookup NU author(s): Professor TT Thiruvallore Thattai, Professor Joanna Gray
This is the authors' accepted manuscript of a book chapter that has been published in its final definitive form by Hart Publishing, 2017.
For re-use rights please refer to the publisher's terms and conditions.
This paper takes up the question of private law's role in a state and legal system dominated by technocratic, administrative, and regulatory institutions. Recent years have seen private law come to be displaced by these institutions and to itself take on a more technocratic face, as seen in the disappearance of the Clapham Omnibus, the centrality of risk management, and the growing role of procedure and case management. Some theorists have responded to these trends by arguing for private law to disengage from systemic concerns and to focus on interpersonal justice, whilst others see systemic matters playing an ever-growing role. This paper argues that whilst private law cannot avoid engaging with systemic issues, its proper role should be to move away from a focus on systemic dimensions, to concerning itself primarily with the human dimension of systemic issues. We use the example of the financial sector to illustrate and develop this approach. In the post-crisis world, legal developments in finance have been characterised by two trends: at the public level, a move to system-oriented macroprudential regulation; and at the private level, a move to remove financial transactions from the control of the courts through the creation of an institutionalised system of private arbitration in the form of the PRIME finance initiative. Critically, both these trends share in common the fact that they are focused on the needs and perspectives of technocratic experts and institutional market players, and are insulated from the needs and perspectives of end-users and of the broader polity.We argue that such a system is fundamentally flawed. Drawing on the literature on resilience and regulation, we show that such a regulatory framework will tend to ignore the socio-cultural dimensions of resilience, which are of central importance to a resilient financial system. We argue that the direction in which macroprudential regulation is evolving bears this concern out. Drawing on the history of responses to crises, as well as the German experience with the Kapitalanlegermusterverfahrensgesetz, we demonstrate that the resulting gap is one that a revitalised and open system of private law can and should fill. This, we argue, will require a fundamental reconsideration of the direction of recent changes to the civil justice system, and a renewed emphasis on its socially embedded character.
Author(s): Arvind TT, Gray Joanna
Editor(s): Kit Barker, Karen Fairweather, Ross Grantham
Publication type: Book Chapter
Publication status: Published
Book Title: Private Law in the 21st Century
Year: 2017
Pages: 237-255
Print publication date: 26/01/2017
Acceptance date: 05/10/2016
Publisher: Hart Publishing
Place Published: Oxford
URL: http://www.bloomsburyprofessional.com/uk/private-law-in-the-21st-century-9781509908585/
Library holdings: Search Newcastle University Library for this item
ISBN: 9781509908585
