Introduction
Since the 1960s, a fierce academic dispute is been held within the international legal community regarding an apparent rebirth in the twentieth century of the law merchant, also popularly known as lex mercatoria. Indeed, the old jus gentium lived and disappeared with the fall of the Roman Empire and later reappeared with the revival of international trade in the eleventh-century Europe[1]. During the medieval era, the merchants developed trade usages and customs that acquired general application throughout the European merchant community being applied in the consuls and specialised merchant courts that settled disputes in trade fairs and ports[2]. Lately some of the trade customs where codified in merchant laws, for instance the Catalan Llibre de Consulat del Mar, and were applied in merchant courts independently of national and local laws. However, despite the fact that the lex mercatoria did exist from the beginning of the human civilisation and was widely practised in the Middle Ages it has been ignored as a body of law. Only recently, when some prestigious legal scholars started advocating for its rebirth, has the ‘new lex mercatoria’ made a comeback with its suitability for application to international commercial transactions[3].
As some scholars note, one of the main problems of the debate regarding the existence or not of the lex mercatoria is the scope of the concept itself. That is, when we talk about lex mercatoria or law merchant what exactly are we talking about? Are we talking about a set of legal rules and customs created by the merchants in they day by day practice or else legal rules created for merchants by legislators, academics and arbitrators?[4] This question could, of course, have many answers. Due to the fact that the legal community usually uses a combination of both the debate it still remains obscure in its scope. In addition, there is other term that heightens the confusion, namely transnational law or transnational commercial law, a term used to describe ‘all law which regulates actions or events that transcend national frontiers’[5].
What is Lex Mercatoria?
It is important to note that the concept lex mercatoria has had different meanings within the academic community, particularly after the 1962 London Conference on the Sources of International Trade was held, were a systematic discussion of the concept started[6]. In fact, we could say that there are as many concepts of lex mercatoria as there are authors dealing with it. Despite this fact, there are two clearly different conceptions. The first one is the positivist approach represented by Professor Clive Schmmithoff. The second is the autonomous approach represented by Professor Berthold Goldman[7].
Prof. Clive Schmmithoff argues that within the boundaries of national legal systems, many international conventions and self-regulatory rules play an important role and are useful in the regulation of international business transactions. Schmmithoff does not consider these rules as being part of a legal system different from national legal systems, although in his view they do constitute an autonomous system of law[8]. According to Schmitthoff, international business law is made up by national rules and court decisions but also by international instruments and international dispute settlement mechanisms[9].
At the other end of the scale we find Professor Goldman’s approach to lex mercatoria. In his original conception lex mercatoria is described as ‘a set of general principles, and customary rules spontaneously referred to or elaborated in the framework of international trade without reference to a particular national system of law’[10]. As Filip De Ly points out, Professor Goldman advocates that the lex mercatoria represents an autonomous legal system, different from domestic legal systems, having its own legal sources and rules and using international commercial arbitration as its preferred dispute settlement system[11].
Unlike Professor Schmmithoff´s conception, Berthold Goldman’s approach challenges the traditional conception on national laws as the main source for the regulation of international business transactions, being, thus, a more controversial theory[12].
Is the later conception the one which is often understood when the lex mercatoria concept is mentioned rather than the process of harmonisation of international trade law. The harmonisation of international trade law is based on the dominion of the traditional domestic or national laws with the aim to minimise the differences within the different national rules. Yet, for the lex mercatoria supporters, also known as mercatorists, the laws of individual states are not important at all since the law merchant is an autonomous body of law[13]. Only those rules dealing with international trade originating in trade usages qualify. This conception proves quite confusing since nowadays lex mercatoria is often mistaken by international conventions such as the CISG and the Unidroit Principles on International Commercial Contracts.
Still, the concept of lex mercatoria brings along another idea; namely the fact that national commercial laws are not suitable to regulate and resolve the unique problems of international business transactions[14]. This concern is thoroughly visited by Professor Clive Schmmithoff in his introduction to the London Colloquium on the New Sources of the Law of International Trade at King’s College:
The evolution of an autonomous law of international trade, founded on universally accepted standards of business conduct, would be one of the most important developments of legal science in our time. It would constitute a common platform for commercial lawyers from all countries, those of planned and free market economy, those from civil law and common law, and those of fully developed and developing economy, which would enable them to co-operate in the perfection of the legal mechanism of international trade.[15]
Indeed, the rapid development of international trade after the Second World War soon showed the limitations of the traditional regulation of international contracts[16]. The conventional, complex system of private international law failed to offer quick, practical and easy solutions for the international business community. Thus, the states started a process of harmonisation by means of international conventions and model laws based on the practice of international trade. This process, however, proves time consuming due to the different cultural and legal backgrounds of the states involved in the negotiation of these instruments[17].
The issue of the sources and elements of the lex mercatoria is even more problematic due to the lack of agreement when it comes to a defining it as we previously mentioned. Professor Goldman recognises two, the customs of international trade and the general principles of law[18]. Professor Schmmithoff refers to mercantile customs but only when formulated by international bodies such as the International Chamber of Commerce (Incoterms) and international conventions[19]. Professor Lando, on the other hand, provides the most extensive list of lex mercatoria elements including; 1) public international law, 2) uniform laws which have been adopted for international trade, 3) the general principles of law recognised by the commercial nations, 4) rules of International Organisations, 5) the customs and usages of international trade, 6) standard form contracts and 7) the reporting arbitral awards[20]. From these sources a number of principles have been extracted to form the lex mercatoria, some of these principles are: 1) the pacta sunt servanda doctrine (agreements of the parties must be observed, 2) the entitlement to non performance upon substantive breach by the other party, 3) a good faith obligation in the parties dealings, 4) a duty to mitigate damages 5) the doctrine of rebus sic stantibus (termination of obligations when underlying facts substantially change) and 6) the duty to renegotiate to overcome unforeseen difficulties in performance[21].
Lex Mercatoria criticised
The objections to the lex mercatoria approach are both of a conceptual and of a practical nature. It is argued that no law can be developed outside the boundaries of a national legal system or that at least a state cannot provide a legal sanction to rules that are not based in the sphere of a nation state[22]. From a practical perspective, it is argued that the lex mercatoria approach provides little certainty because it lacks a reliable set of rules[23].
Going further into the debate, and as Felix Daseer points out, the real question regarding the concept of lex mercatoria is ‘whether we have to apply any national law at all according to the traditional conflict- of -law concepts or whether we may simply and exclusively apply rules that were developed for international business transactions outside the traditional framework of national laws and international conventions’[24].
Lex mercatoria is seen with scepticism by some academics and practitioners who tend to be particularly sceptical about the substance or positive rules of the lex mercatoria itself. Those who oppose lex mercatoria object its lack of generality and predictability, dismissing it for being a set of vague and not completed collection of trade usages with no binding force at all[25]. These sceptics or ‘traditionalists’ criticise the lack of satisfactory evidences proving the existence of an autonomous international trade law created by the commercial actors[26]. Furthermore, they deny the existence of the lex mercatoria as a body of law:
What is a law without a legal system supporting it? Just because the lex mercatoria is theoretically available as a source for interpretation or amplification of contractual clauses does not make it law. It is, in my own view, not a system of lex mercatoria but rather, at most, a set of principia mercatoria[27].
For these authors ‘the unpredictability of the concept not only disqualifies it from implied application to international commercial contracts but also impugns its very existence’[28]. Even the defendants of the lex mercatoria admit that it is incomplete, not providing suitable tools to successfully regulate issues such as validity, capacity or contract form[29]. In addition, critics argue that lex mercatoria cannot constitute a systematic body of rules due to diversity of the international merchant community and its interests[30].
Nevertheless, despite those gaps in the law merchant mentioned before, there are no serious obstacles for the proponents of lex mercatoria. Lex mercatoria´s advocates, predominantly representatives of Western industrialised states and private interests, stress the self-regulatory abilities and capacities of merchants[31]. In fact, the purpose of modern lex mercatoria, just as its medieval predecessor, is to facilitate the international transaction rather than create a solid and positivist traditional body of law. As Claire Cutler points out referring to the mercatorists;
In asserting, either explicitly or implicitly, that the purpose of commercial regulation is to facilitate economic exchange, they believe that the best way to achieve economic efficiency and certainty is to give maximum scope to the principles of merchant autonomy, freedom of contract, and private dispute settlement (arbitration) and to recognise the fundamental role played by commercial custom[32].
In this respect, one question arises; is there a transnational corporate elite community pushing for the institution of an international or global law order and advocating for the superiority of the private ordering of global corporate relations?[33].
Lex Mercatoria and International Commercial Arbitration
With more and more disputes being brought to settlement out of court, international arbitration has thrived in recent years as an alternative solution for the resolution of disputes within the international business community. Nowadays, many practitioners and academics believe that arbitration should be the sole acceptable dispute resolution process especially when parties with different nationalities have rejected recourse to their national legal systems when a dispute arises[34]. As Weinberg points out, the apparent neutrality of arbitration separated from the influences of sovereignty has been the best asset for its growth[35]. Dezelay and Garth argue that international commercial arbitration began to adopt its importance as a pre-eminent tool for resolving international disputes around the 1970s for some particular historical reasons. The cold War era and the tension between the North and the South gave rise to the need for legal rules and dispute settlement processes independent from domestic laws due to the implicit sovereign issues attached to them[36]. However, in theory, states still retained some control over the arbitration in that they could affect procedures and applicable law through the imposition of public policy considerations. Despite this fact, the courts have been interpreting such control very loosely in order protect to some extent the principles of international comity[37]. Thus, international commercial arbitration seems to be the proper place for the application of lex mercatoria. But is lex mercatoria applied in the arbitration practice? Traditionally, only national laws may function as the law applicable to international commercial contracts.
Lex mercatoria proponents admit that the application of the law merchant is confined to arbitration. Domestic courts and judges are bound to apply either their national law or the laws of another sovereign state to the exclusion of any a-national set of rules[38].
In an study carried out since the late 1980s by Felix Dasser regarding the application of lex mercatoria in arbitral awards, covering a time-span of about 50 years, fewer than 30 arbitral awards were founded exclusively based on a non-national legal system that ‘could somehow be packed under the notion of a lex mercatoria in an extremely broad sense of the term, including natural law, general principles applied by international tribunals and the like’[39]. Dasser concludes that this percentage of arbitral awards is marginal although not in absolute terms due to the secretiveness of commercial arbitration. Since arbitral awards are not normally published, the number of undetected cases remains unknown. Dasser argues that the concept of non-national law, be it lex mercatoria or something else, was virtually absent in the arbitration of trade associations where the overwhelming majority of international commercial arbitration cases are decided[40].
There is another question regarding the enforceability of arbitral awards based in non-national legal standards. Generally speaking, arbitral awards are not enforceable simply on their own; they need the intervention of a court to enforce them although apparently the self-enforceability was defended by the mercatorists at the beginning of the lex mercatoria movement[41]. This state support can be called in two ways: first, in the form of an appeal at the place where the award was made, and secondly in form of recognition and enforcement tools in another country if the need for such enforcement arises for the winning party[42]. Dasser concludes that all the awards studied where enforceable under the universally recognised 1958 New York Convention on Recognition and Enforcement of foreign Arbitral Awards (NYC)[43].
Other empirical enquiries have been made before regarding the hypothetical use of the law merchant between the practitioners. One of them has been brought up by the University of Cologne’s CENTRAL Research Project on Transnational Commercial Law, sponsored by the Volkswagen Foundation, and led by Professor Claus Peter Berger. In a research entitled ‘The Role of Merchants, their Lawyers and their Arbitral Tribunals in the Evolution and Development of Transnational Commercial Law’ a world wide empirical study was conducted regarding the viability of transnational commercial law as a third legal order. 2733 questionnaires were sent to different in-house lawyers of major companies, attorneys from major law firms, international arbitrators and law professors working in the field of international commercial law with the intention to clarify if transnational law was being used and accepted by international legal practice in the fields of contract negotiations, contract drafting and in the area of dispute settlement through international commercial arbitration. The study came up with two conclusions. Firstly, that transnational law is being used in international legal practice, specially between continental lawyers as practitioners from common law jurisdictions are more reluctant to accept it. Secondly, the research concludes that there is a substantial gap between the assumptions of lawyers who discuss the theory of transnational commercial law and the assumptions and viewpoints of international legal practice. In this sense Professor Berger concludes that;
These results of the CENTRAL Enquiry pose new challenges to those who are involved in the proliferation of knowledge about international business law around the globe. They face the formidable task of spreading the knowledge about transnational law on a world-wide basis. As one addressee stated, ‘knowledge about transnational law belongs to the arsenal of every internationally oriented lawyer’. Thus, ‘marketing strategies’ are required for the success of the new law merchant. Law school courses, continuing legal education, law review articles and moot courts are possible ways to solve the problem[44].
Regarding the use of the lex mercatoria by international arbitrators it is very interesting to show one of the responses given to the CENTRAL’s enquiry by an eminent arbitrator;
In these arbitration cases as well as on many others, I did invoke in my briefs, memorial or arguments…rules of transnational law or the lex mercatoria, but on practically all occasions, although all these cases were won, the arbitrators, if I remember correctly, preferred in general to avoid any reference to transnational law or lex mercatoria! I may add…that according to my experience, most of the distinguished arbitrators I have been dealing with preferred to invoke “general principles of law” or “legal principles common to the parties” opposed in the case rather than one of these new concepts! …On a number of occasions, the arbitrator have indeed resorted to these somewhat new legal concepts but they left them nameless. They have sometimes upon the suggestion of one or other member of the tribunal, avoided to mention these formula expressis verbis. They were apparently afraid to open the door to an appeal for nullity of the award by the losing party[45].
In this sense, Professor Berger concludes that practitioners tend to avoid the term ‘lex mercatoria’ preferring to make reference to other concepts and more recently, since their publication in 1994, to codifications such as the Unidroit Principles of international Commercial Contracts[46].
In many cases lex mercatoria has been applied when parties did not make a choice of law to regulate their contract. In these cases arbitrators have taken the decision to apply lex mercatoria instead of national laws to avoid sticky conflict of law problems as it happened in the ICCA award in Case No. 3540 (Oct. 3, 1980)[47]. However, arbitrators have adopted different approaches regarding the application of lex mercatoria in this sense; some being more reluctant than others. For instance the arbitrator in ICCA Case No. 4237 decided:
It is argued in the literature that international arbitrators should, to the extent possible, apply the lex mercatoria. Leaving aside that its contents are not easy to determine, neither party has argued that a lex mercatoria should be applied. Rather, each party strenuously argued on the basis of a national law […] Accordingly, the arbitrator shall follow the implied desire of the parties to apply a national law[48].
It transpires that there is a need for reaching a consensus on what the commitments of international arbitrator are. As M. Mustill comments, an international arbitrator should keep in mind all the time that he is concerned with international commerce with all the flexibility, practicality and open-mindedness that this implies[49]. In the opinion of Andreas Lowenfeld’s it is important to determine if parties opting for international arbitration as their mode of dispute settlement, have simply made a choice of forum with the expectation that that choice has not effect on the substance of any dispute that may arise, or whether this option implies consciously some difference in the source of law as well as in the decision making process. In his opinion, the later is more likely to be truth, as international arbitration seeks horizontal conformity[50]. In addition the law of international trade proves limited in the practice;
For international commerce, we have only fragments of a written uniform commercial code as the century comes to an end. But an unwritten law understood among merchants does exist, and goes a long way to filling a comparable need… International arbitrators do seek to achieve just results within a legal framework, and that framework is by definition wider than the frontiers of any state[51].
Finally, it has been argued whether the arbitration clause allowing the arbitrators to decide ex aequo et bono is a reference to the use of the lex mercatoria by the arbitrators. For Professor Dalhuisen, this does not necessary imply a reference to lex mercatoria; it rather appears to bind arbitrator to the fundamental principles but no necessarily to the other elements of the lex mercatoria. According to Dalhuisen, the mandatory rules of a national system, which have a clear, direct link with the case, should not be ignored and may still have to be given their due importance[52]. This may not be observed in the case of amiable compositeurs who have the duty to find a sensible solution more freely[53].
The New Trends
As we mentioned above, one of the main problems of lex mercatoria is to identify what are the substantive rules that conform it. Actually, one of the main arguments of the lex mercatoria´s opponents is the difficulty in determining the content and rules of the law merchant and hence, opening the debate to the usefulness of the lex mercatoria.
However, as Dalhuisen points out, there have been recent initiatives to try, to an extent, and codify this set of transnational commercial rules in an effort to contribute to the harmonisation of international commercial law[54]. These initiatives have created practical and informal tools far from the formal academic postures and arguments creating what have been called ‘the new new lex mercatoria’[55].
In a short period of time, between 1994-1995, two important codifications where made probing that the lex mercatoria can actually be codified in ‘norm-like principles and rules together with commentary-like explanations, thus providing international legal practitioners with a means to apply the lex mercatoria in every day legal practice’[56]. These are the UNIDROIT Principles of International Commercial Contracts (1994) and the European Principles of Contract Law.
In 1994 the International Institute for the Unification of Private Law (UNIDROIT) published its Principles of International Commercial Contracts, setting up ‘general rules’ for international commercial contracts. One year after the publication of the UNIDROIT Principles the Commission on European Contract Law –also called the ‘Lando Commission’ in honour of its chairman Professor Ole Lando– published its Principles on European Contract Law[57]. Both set of principles contain rules that cover many aspects of contract law being endorsed with very clear and defined content[58]. Focusing on one of the main problems of the lex mercatoria doctrine, these principles try to give a ‘corpus’ to the lex mercatoria rules and principles, trying to release the endless discussion regarding the very existence of the lex mercatoria, and giving a set of practical rules for the practitioners[59]. Direct references to lex mercatoria are made in UNIDROIT and EU Principles of Contract law. They assume the Principles to be part of it if the lex mercatoria concept is made applicable to the contract. The principles are also binding if the parties in their contract specifically provide so[60]. They could also be used as means of interpreting national or international uniform law, as a reference for national and international legislators and as the governing law to the contract. Despite that, neither the UNIDROIT Principles nor the EU Principles are binding, not being endorsed in any international convention or the like[61].
However, these principles have been considered as new sources of the modern lex mercatoria being able to be applied not only in international commercial arbitration but also in domestic courts as the law governing the contract. Overall, the importance of these principles is well expressed by L. Yves Fortier when he states that;
Surely, the most important attribute of these collections is that they exist. They can be filed with a judge or an arbitrator, can be referred to by page and article, and may be located and reviewed easily by all those who wish to understand and apply them. As such, they possess the sort of `definitive’ and `provable’ qualities required of a system of law if it is to provide an understandable, workable framework to govern the dealings of parties to international commercial transactions[62].
In fact, and as Professor Dalhuisen notes, modern legal thinking, at least in the professional commercial framework, requires a greater degree of imagination and flexibility as well as a willingness to think more in legal guidance rather than clear-cut rules and corrective legal frameworks[63].
Lex Mercatoria and the Globalisation Process
There is abundant literature about the changing role of the modern nation-sate. Nevertheless, important factors of the nation-state still remain like the sovereignty and the territoriality of its public law[64]. However, today the role of the state is contested and mandatory law or the legal rules that are not subject to contrary agreement by the parties are a source of concern by those engaged in international trade[65]. As Dieter Martiny remarks, there is a tendency to reduce to an extent the effects of those provisions. In addition, the existence of global markets is producing a loss of national control with some indicators expressing the decline of the nation-state[66].
Sociological research indicates that the international business community and their lawyers are aware of the challenges posed by globalisation. As De Ly argues, one of their answers to these challenges is the international self-regulation including international commercial arbitration processes, leading to the application of non-national legal rules and customs[67]. Conflict of laws rules do not produce satisfactory results, in some cases the contract cannot be localised in any country (open sea) or is related to too many countries[68]. The Lex mercatoria approach tries to resolve these problems produced by the increasing globalisation of the economic interchanges. Filip de Ly, one of the most known mercatorists, gives some arguments to support the legitimacy of the lex mercatoria as a tool to approach globalisation[69]. De Ly’s first reason is that national legal rules are not adapted to be applied in international trade. Conflict of laws rules do not produce satisfactory results, in some cases the contact cannot be localised in any country (open sea) or is related to too many countries. Secondly, the lex mercatoria approach can also be justified by practical means. For instance, proof of foreign law could be difficult in some cases of international litigation or arbitration, each legal system having its own rules to tackle these problems. Thirdly, the lex mercatoria may be applied for psychological reasons in international commercial arbitration. It can act as a support and guidance when interpreting international conventions and rules. In the cases that one or more states are involved, there is the advantage of the neutrality to deal with these state contracts where delicate political considerations should be taken. In addition, it can be used in party appointed arbitrator’s deliberations as a way to find unanimity or majority within the arbitral tribunal. In this sense, it could be used as a tool to avoid deadlocks. Fourthly, De Ly argues that the big law firms and the smaller boutique firms (Swiss niche firms) which represent the new generation of technocrat arbitrators have strong interest in promoting lex mercatoria because as a product of the market in which they act they are seen by clients as expertise regarding that product, while the local bars cannot provide that expertise. Finally, the liberal underpinnings of the lex mercatoria are also important to take into account. The proponents of lex mercatoria argue that parties and arbitrators should be freed from the state interference specially regarding the substance of the dispute[70].
Some Conclusions
Lex mercatoria as something similar to an independent legal order does exist, at least in the arbitral practice, but it plays a marginal role [71]. As regards what are the rules of this autonomous legal order, the question remains unanswered; although some initiatives like the Centre for Transnational Law (CENTRAL) are in the business of detecting the transnational practices that conform the lex mercatoria[72]. As a concept, lex mercatoria has several meanings. Firstly, it is a substantive international set of rules as proposed by Schmitthoff. This conception is generally accepted worldwide[73]. Secondly, it is an autonomous system from the national laws based in trade practices and customs; this conception is accepted and influential within scholars, national arbitration laws and ICC arbitrations although having a marginal effect in other instances. Thirdly, it is a method for dispute resolution adjudication, in this sense it remains more as a theory than a reality[74].
What seems interesting and fascinating is the lex mercatoria approach and proposal to tackle the modern challenges that international traders face nowadays. In addition, it challenges the traditional role of the states as the main producers of law in the belief that global transactions should be regulated by transnational legal systems. On top of that, within the lex mercatoria approach there is an inherent tendency to avoid national commercial laws in the benefit of a new jus commune. However, this cosmopolitanism is not revolutionary at all, and it is more suitable for international business. As David Rene notes;
The Universities in each country no longer taught anything but national law. This gave birth to a new and revolutionary concept. Law came to be regarded as national phenomenon, controlled by politics and bound up with the existence of the state. The idea of common law disappeared. The existence of natural law, its force drawn purely from the idea of justice, and independent of all state-authority, was challenged: and this idea came to seem more moral than legal, even to those remaining faithful to it. In the eyes of international lawyers, private international law itself ceased to be anything but a regulation of international commercial relations by the will of the national legislature in a particular state. It became simply a national system of conflict of laws: its object is and can only be; to say which national law governs a particular transaction[75].
Bruno Manzanares Bastida, abogado (Bilbao-Biscay Bar Association).
(Imagen de Peter Lindenau en Pixabay)
Bibliography
Books:
- Cutler, A. Claire, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy, Cambridge University Press, 2003
- Appelbaum, Richard, Rules and Networks: The legal Culture of Global Business Transactions, The Oñati I.I.S.L, Hart Publishing 2001.
- Dalhuisen, Jan H. Dalhuisen on International Commercial, Financial and Trade Law, Hart Publishing, 2000
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- Maniruzzaman, Abul F.M. The Lex Mercatoria and International Contracts:A Challenge for International Commercial Arbitration? 14 U. Int’l L. Rev. 1999.
- Mustill, Michael, The New Lex Mercatoria: The First twenty-five Years, Arb. Int´l 1988, at 86 et seq.
- Goldman, Berthold, The Applicable Law: General Principles of Law. The Lex Mercatoria, in Contemporaneous problems in International Arbitration , Julian D.M. Lew ed. 1986, p. 116.
- Wasserstein Fassberg, Celia, The Empirical and Theoretical Underpinnings of the Law Merchant: Lex Mercatoria–Hoist with Its Own Petard? 5 Chi. J. Int’l L. 67.
- Berger, Klaus Peter, The New Law Merchant and the Global Market: A 21st Century View of Transantional Commercial Law, Int. A.L.R. 2000, 3(4), 91-102.
- Lopez Rodriguez, Ana M., Lex Mercatoria, Research Paper ,School of Law, Department of Private Law, University of Aarhus, 2002.
- Lando, Ole, The Law Applicable to the Merits of the Dispute, in: Sarcevic (ed.), Essays on International Commercial Arbitration, Boston, London 1991, at 129 et seq.
- – Lowenfeld, Andreas F, Lex Mercatoria: An Arbitrator’s View, Int’l 1990 at 133 et seq.
- Schmitthoff (ed.), The Sources of the Law of International Trade (1964), pp. 3, 5, in Berger, Klaus Peter, The New Law Merchant and the Global Market: A 21st Century View of Transantional Commercial Law, Int. A.L.R. 2000, 3(4), 91-102.
- Flanagan, Peter M, Demythologysing the Law Merchant: The Impropriety of Lex Mercatoria as a Choice of Law, C.C.L.R.,15(9),297-306, 2004.
- Zumbansen, Peer, Sustaining Paradox Boundaries: Perspectives on Internal Affairs in Domestic and International Law, EJIL 15 (197), 2004.
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- Highet, K, « The Enigma of the Lex Mercatoria », 63 Tulane L. Rev. 613, 617,1989
- Lagarde, P., Études Goldman, LITEC, Paris, 1983, pp. 125-150, p. 139 in Lopez Rodriguez, Ana M., Lex Mercatoria, Research Paper ,School of Law, Department of Private Law, University of Aarhus, 2002.
- Weinberg, Karyn S., Equity in International Arbitration: How Fair is Fair? A Study of Lex Mercatoria and Amiable Composition. 12 B.U. Int’l L.J. 227,1994.
- Dezalay,Y, Garth, B, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order, Chicago: University of Chicago Press, 1996.
- Dasser, Felix, Lex Mercatoria- Critical Comments on a Tricky Topic in Appelbaum, Richard, Rules and Networks: The legal Culture of Global Business Transactions, The Oñati I.S.L, Hart Publishing, 2001,pp. 191-192.
- Berger, Klaus Peter,Dubberstein, Holger,Lehmann, Sascha,Petzold, Viktoria, The CENTRAL Enquiry on the Use of Transnational Law in International Contract Law and Arbitration – Background, Procedure and Selected Results, Center for Transnational Law, University of Cologne, Germany.
- Davidson, Matthew T, The Lex Mercatoria in Transnational Arbitration: An Analytical Survey of the 2001 Kluwer International Arbitration Database, available atwww.cisg.law.pace.edu/cisg/biblio/davidson.html+lord+mustill+lex+mercatoria&hl=e
- Fortier, L. Yves, The New New Lex Mercatoria, or Back to the Future, Arbitration International,Vol. 17, No. 2, 2001.
- Martiny, Dieter, Private and Commercial Law Rules Under Global Transactions, in Appelbaum, Richard, Rules and Networks: The legal Culture of Global Business Transactions, The Oñati I.S.L, Hart Publishing, 2001, pp.135.
- David, Rene, The International Unification of Private Law, in International Encyclopedia of Comparative Law: The Legal Systems of the World, their Comparison and Unification, vol.II, The Hague,Boston and London: Martinus Nijihoff Publishers, pp.3-218, 1972
Footnotes
[1] See Cutler, A. Claire, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy, Cambridge University Press, 2003, pp 45-49.
[2] Culter, 2003.
[3] Maniruzzaman, Abul F.M. The Lex Mercatoria and International Contracts:A Challenge for International Commercial Arbitration? 14 Am. U. Int’l L. Rev. 1999.
[4] Dasser, Felix, Lex Mercatoria- Critical Comments on a Tricky Topic in Appelbaum, Richard, Rules and Networks: The legal Culture of Global Business Transactions, The Oñati I.I.S.L, Hart Publishing 2001.
[5] See Maniruzzaman, 1999.
[6] Mustill, Michael, The New Lex Mercatoria: The First twenty-five Years, Arb. Int´l 1988, at 86 et seq.
[7] De Ly, Filip, Lex Mercatoria: Globalisation and International Self-Regulation in Appelbaum, Richard, Rules and Networks: The legal Culture of Global Business Transactions, The Oñati I.I.S.L, Hart Publishing 2001.
[8] Ibid
[9] Ibid
[10] Goldman, Berthold, The Applicable Law: General Principles of Law. The Lex Mercatoria, in Contemporaneous problems in International Arbitration , Julian D.M. Lew ed. 1986, p. 116.
[11] See Mustill, 1988.
[12] Ibid
[13] Mustill, Michael, The New Lex Mercatoria: The First Twenty-Five Years, Arb. Int´l 1988, at 86 et seq.
[14] Wasserstein Fassberg, Celia, The Empirical and Theoretical Underpinnings of the Law Merchant: Lex
Mercatoria–Hoist with Its Own Petard? 5 Chi. J. Int’l L. 67.
[15] Schmitthoff in Schmitthoff (ed.), The Sources of the Law of International Trade (1964), pp. 3, 5, in Berger, Klaus Peter, The New Law Merchant and the Global Market: A 21st Century View of Transantional Commercial Law, Int. A.L.R. 2000, 3(4), 91-102
[16] Lopez Rodriguez, Ana M., Lex Mercatoria, Research Paper ,School of Law, Department of Private Law, University of Aarhus, 2002.
[17] Ibid
[18] See Goldman, B., Contemporary Problems in International Commercial Arbitration, Julian D.M. Lew (ed.), 1986, pp. 113-125, at 116. in Lopez Rodriguez, Ana M., Lex Mercatoria, School of Law, Department of Private Law University of Aarhus, 2002.
[19] See Schmitthoff, 2000.
[20] Lando, Ole, The Law Applicable to the Merits of the Dispute, in: Sarcevic (ed.), Essays on International Commercial Arbitration, Boston, London 1991, at 129 et seq.
[21] Flanagan, Peter M, Demythologysing the Law Merchant: The Impropriety of Lex Mercatoria as a Choice of Law, C.C.L.R.,15(9),297-306, 2004.
[22] Dalhuisen, Jan H. Dalhuisen on International Commercial, Financial and Trade Law, Hart Publishing, 2000.
[23] Ibid.
[24] See Dasser, 2001.
[25] See Lopez Rodriguez, 2002.
[26] Zumbansen, Peer, Sustaining Paradox Boundaries: Perspectives on Internal Affairs in Domestic and International Law, EJIL 15 (197), 2004.
[27] Highet, K, « The Enigma of the Lex Mercatoria », 63 Tulane L. Rev. 613, 617,1989
[28] Flanagan, Peter M, Demythologysing the Law Merchant: The Impropriety of Lex Mercatoria as a Choice of Law, C.C.L.R.,15(9),297-306, 2004.
[29] Above n. 16
[30] Lagarde, P., Études Goldman, LITEC, Paris, 1983, pp. 125-150, p. 139 in Lopez Rodriguez, Ana M., Lex Mercatoria, Research Paper ,School of Law, Department of Private Law, University of Aarhus, 2002.
[31] Cutler, A.Claire, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy, Cambridge University Press, 2003.
[32] Ibid.
[33] See Cutler 2003: 29
[34] Weinberg, Karyn S., Equity in International Arbitration: How Fair is Fair? A Study of Lex Mercatoria and Amiable Composition. 12 B.U. Int’l L.J. 227,1994.
[35] Ibid.
[36] Dezalay,Y, Garth, B, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order, Chicago: University of Chicago Press, 1996 in
[37] Cutler 2003: 228.
[38] Flanagan, Peter M, Demythologysing the Law Merchant: The Impropriety of Lex Mercatoria as a Choice of Law, C.C.L.R.,15(9),297-306, 2004.
[39] Dasser, Felix, Lex Mercatoria- Critical Comments on a Tricky Topic in Appelbaum, Richard, Rules and Networks: The legal Culture of Global Business Transactions, The Oñati I.I.S.L, Hart Publishing, 2001,pp. 191-192.
[40]Dasser, Felix, Lex Mercatoria- Critical Comments on a Tricky Topic in Appelbaum, Richard, Rules and Networks: The legal Culture of Global Business Transactions, The Oñati I.I.S.L, Hart Publishing, 2001 pp.192.
[41] Ibid.
[42] Ibid, pp197.
[43] Ibid.
[44] Berger, Klaus Peter,Dubberstein, Holger,Lehmann, Sascha,Petzold, Viktoria, The CENTRAL Enquiry on the Use of Transnational Law in International Contract Law and Arbitration – Background, Procedure and Selected Results, Center for Transnational Law, University of Cologne, Germany.
[45] Ibid.
[46] Ibid.
[47]. Davidson, Matthew T, The Lex Mercatoria in Transnational Arbitration: An Analytical
Survey of the 2001 Kluwer International Arbitration Database, available at www.cisg.law.pace.edu/cisg/biblio/davidson.html+lord+mustill+lex+mercatoria&hl=en, accessed on….
[48] Award of Feb. 17, 1984. See Above
[49] Mustill, Michael, The New Lex Mercatoria: The First Twenty-Five Years, Arb. Int´l 1988, at 86 et seq.
[50] Lowenfeld, Andreas F, Lex Mercatoria: An Arbitrator’s View, Arb. Int’l 1990 at 133 et seq.
[51] Ibid
[52] Dalhuisen, Jan H. Dalhuisen on International Commercial, Financial and Trade Law, Hart Publishing, 2000
[53] Ibid.
[54] Fortier, L. Yves, The New New Lex Mercatoria, or Back to the Future, Arbitration International,Vol. 17, No. 2, 2001.
[55] Ibid.
[56] Ibid.
[57] Ibid
[58] Lopez Rodriguez, Ana M., Lex Mercatoria, Research Paper ,School of Law, Department of Private Law, University of Aarhus, 2002.
[59] Fortier, L. Yves, The New New Lex Mercatoria, or Back to the Future, Arbitration International,Vol. 17, No. 2, 2001.
[60] Dalhuisen, Jan H. Dalhuisen on International Commercial, Financial and Trade Law, Hart Publishing, 2000.
[61] See Fortier, 2001.
[62] See above n. 57
[63] Above n. 61
[64] Martiny, Dieter, Private and Commercial Law Rules Under Global Transactions, in Appelbaum, Richard, Rules and Networks: The legal Culture of Global Business Transactions, The Oñati I.I.S.L, Hart Publishing, 2001, pp.135.
[65] Ibid
[66] Ibid.
[67] De Ly, Filip, Lex Mercatoria: Globalisation and International Self-Regulation in Appelbaum, Richard, Rules and Networks: The legal Culture of Global Business Transactions, The Oñati I.I.S.L, Hart Publishing 2001 pp.178.
[68] Ibid.
[69] Ibid
[70] Ibid.
[71] Dasser, Felix, Lex Mercatoria- Critical Comments on a Tricky Topic in Appelbaum, Richard, Rules and Networks: The legal Culture of Global Business Transactions, The Oñati I.I.S.L, Hart Publishing, 2001,pp. 198
[72] Ibid
[73] De Ly, Filip, Lex Mercatoria: Globalisation and International Self-Regulation in Appelbaum, Richard, Rules and Networks: The legal Culture of Global Business Transactions, The Oñati I.I.S.L, Hart Publishing 2001 pp.181
[74] Ibid.
[75] David, Rene, The International Unification of Private Law, in International Encyclopedia of Comparative Law: The Legal Systems of the World, their Comparison and Unification, vol.II, The Hague,Boston and London: Martinus Nijihoff Publishers, pp.3-218, 1972, in Cutler, A. Claire, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy, Cambridge University Press, 2003, pp.145.
