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The Autonomous Contract

Reflecting the borderless electronic-commercial environment in contracting

1. Introduction

2. In search of autonomy

2.1 The diminishing role of States
2.2 Solutions available within national law
2.2.1 Uniform law and its limitations
2.2.2 Uniform rules and principles
2.2.3 Situation specific standard contracts
2.3 A transnational regulatory order for contracts
2.3.1 International commercial arbitration (ICA)
2.3.2 Lex Mercatoria - and its essential link to arbitration
2.3.3 Codified general contract principles as lex mercatoria
2.3.4 Protective principles as a necessary part of lex mercatoria
2.4 The autonomous contract - an a-national solution, a summary

3. The problem of predictability

3.1 Predictability at a municipal level
3.2 Uniformity at an international level
3.2.1 The UN Convention on the Law of Treaties
3.2.2 Interpretation clauses within uniform laws

4. Alternative solutions

4.1 Independent supra-national interpretation tribunals
4.2 Authoritative reviews as co-ordinating guides
4.3 Limiting of sources for interpretation
4.4 Information technology solutions - transnational harmonising information and knowledge-bases
4.5 E-contract solutions?
4.6 Education

5. Summary

6. Endnote

Endnotes

Endnotes

Metadata

SiSU Metadata, document information

Manifest

SiSU Manifest, alternative outputs etc.

The Autonomous Contract

Reflecting the borderless electronic-commercial environment in contracting

Ralph Amissah

copy @ Lex Mercatoria

The Autonomous Contract

Reflecting the borderless electronic-commercial environment in contracting

5. Summary

This paper has discussed a number of interrelationships, themes, problems and possible solutions that arise from its premises, perspective, and framework, as set out in summary form in the introduction. It highlights the need for lawyers world-wide to foster a genuine international approach to their thinking, method, practice and solutions with regard to international commercial contracting and law. The conduct of business world-wide is increasingly transnational. It demands that the legal community keep abreast of and cater for these needs. Efforts to find solutions to should similarly focus on a transnational and harmonising direction. The discussion in this paper concentrates on various aspects that are raised in consequence of this with regard to: the legal framework available for the international business community; problems related to further transnationalisation; and some possible solutions. It is not, however, a mere matter of choice for the legal community to decide whether or not to take an interest in this increasingly evident phenomena. The international business community has the power to find ways to meet their needs through the expression of their choice in the exercise of their contractual freedom. In using this power they exert influence on the conduct of the legal community in a manner which ensures that these needs are eventually satisfied. The business community subscribes to the legal framework and services provided by those sensitive to their needs. Those less sensitive are marginalised and eventually persuaded of the need to adapt. The results that would be achieved by absolute freedom of contract, however, are not necessarily the most ideal for the business community as a whole. As such it is necessary to be mindful of the limitations of contractual freedom and legislators should give recognition to this need as well.


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( International Trade/Commercial Law & e-Commerce Monitor )

W3 since October 3 1993
1993 - 2010

started @The University of Tromsø, Norway, 1993
hosted by The University of Oslo, Norway, since 1998
in fellowship with The Institute of International Commercial Law,
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Ralph Amissah




Lex Mercatoria