ABSTRACT

This chapter explains the phenomenon of sectoral fragmentation: its causes, characteristics, and consequences. It then describes the concept of legal fragmentation and its relationship to theories of contractual and other private forms of transnational governance. The concept of fragmentation was developed in the public international law literature, and has been a preoccupation of that scholarly community for years. Globalization has driven modern society simultaneously toward greater uniformity — across state boundaries and greater fragmentation across different spheres of social interaction; as a consequence, international law has lost its previous unity and become fragmented into sub-disciplines, each a normative island unto itself. The chapter argues that sectoral fragmentation of commercial law is an inevitable consequence of the rise of private governance, and sets out the mechanisms by which private governance leads to sectoral fragmentation. It briefly explores the political and normative implications of sectorally fragmented commercial law.