Culture, Contracts, and Performance in East Asia - Dispute Resolution Journal - Vol. 72, No. 1
Originally from Dispute Resolution Journal
Law is a binding custom or practice of a community; a rule or mode of conduct or action that is prescribed or formally recognized as binding by a supreme controlling authority or is made obligatory by a sanction... made, recognized or enforced by the controlling authority.
– Third New International Dictionary, Merriam-Webster Inc.
The word ‘law’ in Western languages has four different interpretations in Chinese as in li (理 “order’), li (禮: “rites” or “decorum”), fa (法: “human made laws”) and zhì (制: “control”).
– Montesquieu, De l’esprit des lois
Over the years, the concept of “law” and its practical application have provoked significant debate amongst scholars as well as practitioners. The concept is elusive in the abstract and derives meaning only from context: an articulation of the community in which it exists, the authorities from which it is derived and enforced, the identification of customs, norms and rules within that community, and mechanisms for delineating between obligations that are binding and enforceable and those that are not. Particular legal systems each have their own responses to these issues. When transported to the international stage, however, numerous issues emerge as the customs and practices developed to suit one context are applied in a very different one. Legal traditions, culture and custom forming the bedrock of law in the context of domestic transactions do not easily translate when applied to the context of transactions with parties from other jurisdictions. Differences in legal tradition and culture can strain communication between commercial parties from different jurisdictions, resulting in uncertainty and misunderstandings and, in some cases, may even precipitate disputes.