by Alexander Studnev

The 20^th century marked dramatic changes in the world. The emergence of the global economy and technological and social advancements have flipped the chessboard of history like never before. The era of “Great Powers” and the Westphalian State-centric global system of organisation are arguably transitioning into oblivion.

After the collapse of the Soviet Union, it can be said that the world entered into a truly global economic order. In 1992, philosopher Francis Fukuyama proclaimed the “end of history”. Indeed, the rampant process of Globalisation and the firm establishment of the liberal world order after the Cold War made many scholars believe that the historical process had come to its logical end, and that future generations would witness the rise of human prosperity and transformation, under a unified democratic regime all across the world. Among those enthusiasts was Thomas Friedman, who proposed the “Golden Arches Theory”, according to which an armed conflict between “two countries that both have McDonald’s” would not be possible, as it would bear devastating economic consequences for both combating nations.

Legal developments played a significant role during this era. From the unified system of financial information exchange, to nearly identical corporate governance systems, the Law acted as a locomotive for the movement of capital. A huge part of that process is due to the scholarly contributions of Comparative Law. As the collapse of old structures always requires the creation of new ones, newly-established democracies and nations had to reconstruct their own legal systems. Legal think tanks, university campuses, and comparative lawyers were shaping the laws that would light the way for the entire global economy.

Today, the world is entering a new era. The rules are being revised and tensions all around the spectre rise. History has risen and scavenges for a change. This new era has no name yet, but let us call it “The Great Uncertainty”. How will the legal world and Comparative Law, in particular, fit into the Great Uncertainty? It is on this very question that we reflect below.

The Globalised Legal Order

First of all, one needs to have a clear understanding of the world over the past century. Globalisation was a ‘two-wave’ process, with the first wave commencing in 1870 and the second one after the Second World War. The first wave aimed at the partial dissolution of trade barriers and protectionist policies backed by economists like Daniel Friedrich List. These early events of legal globalisation were linked to the Second Industrial Revolution and its multiple innovations. It brought the understanding that efficient production always requires innovation and also that those innovations must be protected. It was the Paris Convention for the Protection of Industrial Property in 1883 which granted equal protection of industrial intellectual property across the signatory States. Of course, some may argue that Globalisation was launched when the first ships of the Dutch East Indian Company left the ports of Rotterdam, some two centuries earlier. However, this would be an exaggeration, since it was not until the Paris Convention that a transglobal and unified understanding of the governing legal order materialised. States were largely unfamiliar with the concept of sovereignty limitations, and thus, it was a significant development for the commercial world to bring such a Convention to life.

The second wave was a result of the emergence of global financial markets, mainly through the Bretton-Woods agreement (1944), and the race for new markets in the new, post-colonial States which emerged in the aftermath of the Second World War.

It is worth highlighting that at the time, international and supranational organizations like the United Nations, the General Agreement on Trade and Tariffs (GATT), and the European Economic Community (from the late 1950s onwards, and later the European Union/ EU), were in a very preliminary stage of their formation. Today, the majority of States share very similar legislation, especially in terms of international commerce. Agreements like the Vienna Convention on International Sales of Goods (1980) or the 2016 UNIDROIT Principles of International Commercial Contracts shaped what has become one of the most important aspects of  global international trade and economy. These conventions provided “cheap” and reliable instruments for merchant assurance and balancing out the international trade governance in major jurisdictions. In this process, comparative lawyers drafted the bedrock of the economic order by laying the essence of their understanding of the legal systems  across the pages of these very documents.

The Great Uncertainty of the 2020s

Globalisation is a child of post-modernism. Post-modernism is largely a cultural process that some argue is now coming close to its end. Being a philosophically-inspired movement of the 20^th century, it is fully built on the principles of problematisation and collision of ideas, similar to the concept of dialectics employed by Hegel.

Currently there is an observable shift to meta-modern concepts, built on systemic and constructive efforts to find solutions to various issues. This is also observable in the legal field. The laws of today need to be much more systematic and oriented towards particular problems. Soft law regulations like the one’s developed by the UN Global Compact initiative spread the implementation of sustainable policies by businesses worldwide. Another example is the General Data Protection Regulation of the EU, which resolves the issue of data protection on a supranational level, among the Union’s member states. The understanding of this problem-solving approach in different jurisdictions is becoming a prior objective of Comparative Law. In other words, Comparative Law is utilised in search of harmonizing and efficient legal solutions.

The meta-modern approach was viable in the globalised world described by Fukuyama in 1992. But this world seems to have drifted to the past. Instead, the world is shifting towards the Great Uncertainty. Financially significant nations face rapid inflation, democracy is in crisis, and the world is increasingly polarised (here). At the same time, Artificial Intelligence (AI) has sparked a Forth Industrial Revolution, in a world where half of the world’s population does not have internet access, and new global powers project their power, seeking the revision of the current global order.

This ‘deglobalisation’, which became most obvious during the COVID-19 pandemic, has accelerated at tremendous rates following the eruption of a full scale armed conflict between the Russian Federation and Ukraine, and the subsequent economic sanctions imposed on Russia. This has already had major consequences for the global legal order, as the EU, the US and others seek uniformity in the application of sanctions, while on the opposing side, others have found unity in new mechanisms of economic cooperation to undermine the implied restrictions. The most likely end result of this will be the formation of new “blocks,” similar to the Cold War division. Such fragmentation paves the way for a new ‘deglobalised’ system of global governance. It is hard to predict what exactly it will look like, but it is obvious that such systems are not created from scratch and that they will be built with an eye on the existing geopolitical dynamics.

In this process, Comparative Law would be, like in the past, one of the instruments for the development and understanding of other systems. Comparative lawyers are faced with a challenge to both structure a legal dialogue between these new and old groups, and to make it possible to use Comparative Law as a means for solving global problems within a common frame. Despite all controversies, States will still need to trade and co-operate with each other.

In today’s rapidly changing and restructuring world, the need for comprehending and fostering dialogue between legal systems is more crucial than it has ever been. Comparative Law is faced with challenges, driven by the enduring human desire of mutual understanding, exchange, and cooperation between each other. Those challenges will not disappear in the future. Thus, Comparative Law could once again be called to identify differences and similarities, explain approaches and foster cooperation, in the hope to contribute toward a blueprint for a better world.