Juridical gyroscopic orientation of transnational business negotiations

The hypothesis of our doctorate posits that there is a better manner for law to regulate TBN.  We posit to improve legal regulation of TBN that an alternative legal framework is necessary for the regulation of transnational business negotiations [TBN] between private parties in context of international sale of goods. The fundamental premise lies in the manner in which negotiations are commonly misunderstood within the complexity of pluralistic, conflicting or overlapping legal regimes causing inconsistent measurement and enforcement of remedies to business parties. Even the most sophisticated business parties toil with the nebulous line of when and how legal rights and obligations are created. Parties do not sufficiently anticipate obstacles that may arise, and often rely on oral or incomplete agreements which may lead to the misinterpretation of the extent of their rights and obligations to one another.  The law has an interest in this innate activity for three reasons: (1) to protect market requirements of efficiency; (2) because of its opportunist nature, to guide conduct between TBN parties; and (3) to support party autonomy.  We will be focusing on the expansion of current legal theory of negotiations in search of a new normative theory that could contribute to the improvement of regulation of TBN.    The project will comprise an analysis of current legal negotiation theory to attain a legal portrait of how law views business negotiations. We have observed the poverty of legal tools available to weigh juridical consequences of negotiation movements. Tangible negotiations may reveal themselves in various forms of agreements; some that are recognized by adjudicators if they pass tests of validity of contract while others fail to produce recognition. When agreements appear incomplete, adjudicators are forced to either deny enforcement of negotiating agreements or turn to fictitious rationalizations. Conversely, legal obligations during negotiations may be construed within the general scope of the law of obligations whether they have been intended between the parties or not.   This study is expected to reveal the threats of colliding and conflicting norms as well as factors that reconcile the legal regulatory sources towards a global legal merchant culture. Illuminating a new understanding of negotiations can be accomplished through an interdisciplinary glimpse of business strategies and perception, along with examination of the etic and emic negotiating behavioral sequences identified by behavioral scientists. Factoring patterns of normative sequential business negotiations may provide fundamental elements to expose the intangibility of negotiations by amalgamating normative values emanating from party autonomy. Negotiations are often considered a phenomenon misfit in law; traveling between traditionally separated legal doctrines.  Reaching back to historical transformations in search of the roots of the regulatory sources may illuminate negotiations from the “shadow of the law” into a model revealing the expansion into interdependency and cooperation.  Comprehension of the factors that influence the normative frameworks that parties presuppose while negotiating together will contribute to our tri-dimensional comparative law analysis. A new critical awareness of the portrait of negotiations will be proposed through the application of Hogg’s co-operative theory of contracts to negotiations, opening the door to a fresh vision of negotiations. Setting default standards of conduct through a normative legal negotiation theory may eventually lead to the consideration of sui generis rules to monitor our evolving global society in order for law to provide the securitized efficiency and autonomy required by TBN parties.  Meanwhile, party autonomy may seize leadership through new trade mechanisms which we have termed "Bills of Negotiations [BON]", providing TBN parties with transparent standards of communications that operate through expressed party choice to record parties’ intentions, which are expected to support business norms and serve law with invaluable empirical data and evidence.

Keyphrases: Negociations, Transnational business affairs, Dispute resolution mechanisms, Bonne foi, Good faith, Freedom of contract, Party autonomy, Legal negociation theory, Juridical obligations, Bills of negociation, Comparative law