oversimplification of both social relations of feudalism and of modern law. See RH
Graveson, ‘The Movement from Status to Contract’ (1941) 4 The Modern Law
Review 261. Atiyah agrees with Maine’s analysis but claims that the transition away
from contracts had already started in Maine’s time. See Atiyah (n 6) 261.
12 As stated by JH Baker in his book review, Atiyah’s study continues the debate on birth
and death of classical contract theory that was begun by American scholars Lawrence
M Friedman, G Gilmore and MJ Horwitz. Atiyah’s analysis partakes in this debate
from the English perspective. Baker also criticises Atiyah’s analysis on its historical
merits. See JH Baker, ‘Book Review, The Rise and Fall of Freedom of Contract. By PS
Atiyah [Clarendon Press: Oxford. 1979. Xii and 792 Pp. (Incl. Index). £30.00.]’
[1980] The Modern Law Review 4.
13 Atiyah (n 6) 104.
14 ibid 716–726.
15 ibid 729–754.
16 ibid 727.
17 ibid 754–759.
18 ibid 763.
19 For an overview on the foundation of the new lex mercatoria, and its codification see
e.g. Klaus Peter Berger, The Creeping Codification of the New Lex Mercatoria (Kluwer
Law International 2010).
20 Calliess, ‘Lex Mercatoria’ (n 3) 4–7.
21 ibid 8–15.
22 Alec Stone Sweet, ‘The New Lex Mercatoria and Transnational Governance’ (2006)
13 Journal of European Public Policy 627, 627.
23 In a similar vein, some scholars have consequently claimed that ODR has its own
jurisdiction in parties’ agreement. See e.g. Victoria C Crawford, ‘Proposal to Use
Alternative Dispute Resolution as a Foundation to Build an Independent Global
Cyberlaw Jurisdiction Using Business to Consumer Transactions as a Model, A Note’
(2002) 25 Hastings International and Comparative Law Review 383, 383. Building
jurisdiction on consent instead of territorial jurisdiction makes it clear that both
sovereignty and consent are used for same ends.
24 V Aubert, ‘Competition and Dissensus: Two Types of Conflict and Conflict Resolution’ (1963) 7 The Journal of Conflict Resolution 26, 35.
25 A Stone Sweet, ‘The New Lex Mercatoria and Transnational Governance’ (2006) 13
Journal of European Public Policy 627.
26 M Kurkela and S Turunen Due Process in International Commercial Arbitration (2nd
edn, Oxford University Press 2010) 43.
27 ‘Even though the arbitration itself is extrajudicial, the law will stand behind and
enforce the award. The first potential difficulty with arbitration appears at this point.
The consumer may need to use the judicial system to enforce the award, and hence all
the problems with that system that the consumer has been hoping to avoid crop up
again.’ Laura Nader and Christopher Shugart, ‘2 Old Solutions for Old Problems’, No
Access to Law. Alternatives to the American Judicial System (1st edn, Academic Press
1980) 79.
28 ‘It is unclear just how “consensual” arbitrations in the context of medieval guilds and
fair really were, since the relevant tribunals appear to have had a degree of mandatory
jurisdiction, as well as enormous commercial sway.’ Gary B Born, International
Commercial Arbitration. Volume I (Wolters Kluwer 2009) 28.
29 J Hörnle, Cross-Border Internet Dispute Resolution (Cambridge University Press
2009) 49.
30 See above, Chapter 4, section 4.3, The quest for justification.
31 ‘. . . the central quality of mediation, namely, its capacity to reorient the parties toward
each other, not by imposing rules on them, but by helping them to achieve a new and
156 Three quests for justification
Graveson, ‘The Movement from Status to Contract’ (1941) 4 The Modern Law
Review 261. Atiyah agrees with Maine’s analysis but claims that the transition away
from contracts had already started in Maine’s time. See Atiyah (n 6) 261.
12 As stated by JH Baker in his book review, Atiyah’s study continues the debate on birth
and death of classical contract theory that was begun by American scholars Lawrence
M Friedman, G Gilmore and MJ Horwitz. Atiyah’s analysis partakes in this debate
from the English perspective. Baker also criticises Atiyah’s analysis on its historical
merits. See JH Baker, ‘Book Review, The Rise and Fall of Freedom of Contract. By PS
Atiyah [Clarendon Press: Oxford. 1979. Xii and 792 Pp. (Incl. Index). £30.00.]’
[1980] The Modern Law Review 4.
13 Atiyah (n 6) 104.
14 ibid 716–726.
15 ibid 729–754.
16 ibid 727.
17 ibid 754–759.
18 ibid 763.
19 For an overview on the foundation of the new lex mercatoria, and its codification see
e.g. Klaus Peter Berger, The Creeping Codification of the New Lex Mercatoria (Kluwer
Law International 2010).
20 Calliess, ‘Lex Mercatoria’ (n 3) 4–7.
21 ibid 8–15.
22 Alec Stone Sweet, ‘The New Lex Mercatoria and Transnational Governance’ (2006)
13 Journal of European Public Policy 627, 627.
23 In a similar vein, some scholars have consequently claimed that ODR has its own
jurisdiction in parties’ agreement. See e.g. Victoria C Crawford, ‘Proposal to Use
Alternative Dispute Resolution as a Foundation to Build an Independent Global
Cyberlaw Jurisdiction Using Business to Consumer Transactions as a Model, A Note’
(2002) 25 Hastings International and Comparative Law Review 383, 383. Building
jurisdiction on consent instead of territorial jurisdiction makes it clear that both
sovereignty and consent are used for same ends.
24 V Aubert, ‘Competition and Dissensus: Two Types of Conflict and Conflict Resolution’ (1963) 7 The Journal of Conflict Resolution 26, 35.
25 A Stone Sweet, ‘The New Lex Mercatoria and Transnational Governance’ (2006) 13
Journal of European Public Policy 627.
26 M Kurkela and S Turunen Due Process in International Commercial Arbitration (2nd
edn, Oxford University Press 2010) 43.
27 ‘Even though the arbitration itself is extrajudicial, the law will stand behind and
enforce the award. The first potential difficulty with arbitration appears at this point.
The consumer may need to use the judicial system to enforce the award, and hence all
the problems with that system that the consumer has been hoping to avoid crop up
again.’ Laura Nader and Christopher Shugart, ‘2 Old Solutions for Old Problems’, No
Access to Law. Alternatives to the American Judicial System (1st edn, Academic Press
1980) 79.
28 ‘It is unclear just how “consensual” arbitrations in the context of medieval guilds and
fair really were, since the relevant tribunals appear to have had a degree of mandatory
jurisdiction, as well as enormous commercial sway.’ Gary B Born, International
Commercial Arbitration. Volume I (Wolters Kluwer 2009) 28.
29 J Hörnle, Cross-Border Internet Dispute Resolution (Cambridge University Press
2009) 49.
30 See above, Chapter 4, section 4.3, The quest for justification.
31 ‘. . . the central quality of mediation, namely, its capacity to reorient the parties toward
each other, not by imposing rules on them, but by helping them to achieve a new and
156 Three quests for justification