Lex Mercatoria

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The "Transnational" Political Economy:

A Framework for Analysis.[*]

Jarrod Wiener, University of Kent at Canterbury[**]

Introduction

Private International Trade Law:

The Positivist Perspective.

The Autonomist Perspective.

The Sources of the Lex Mercatoria: "Lex", or "Principa".

Applicability and Coercive Force.

"Delocalised International Commercial Arbitration":

Preliminary Observations:

Public International Trade Law.

Normative, Structural Imperatives of the Transnational Political Economy.

Conclusion: The Agenda for Research:

Ideology:

Investment:

Institutions:

Sovereignty, Authority, and Governance:

Endnotes

Endnotes

Endnotes

Metadata

SiSU Metadata, document information

Manifest

SiSU Manifest, alternative outputs etc.

The "Transnational" Political Economy: - A Framework for Analysis.

Jarrod Wiener

copy @ Lex Mercatoria

The "Transnational" Political Economy:

A Framework for Analysis.[*]

Jarrod Wiener, University of Kent at Canterbury[**]

Normative, Structural Imperatives of the Transnational Political Economy.

This paper has suggested that the international commercial system is becoming integrated, or "harmonised" at various levels. It was seen in the first section that at the level of private international commercial law, there is both the factual uniformity of conventions - what was termed the positivist approach - and de facto uniformity through customs - the autonomist perspective. The former is interesting because it describes a process of globalisation whereby domestic commercial laws have international sources; states derive their domestic laws from international origins. As commerce becomes more complex, the imperatives of having effective, and most importantly, uniform and predictable structure for commercial communities mandate that harmonisation takes place. The latter theory is interesting because it attunes the analysis to the fact that, although not codified into municipal laws, nearly-universally recognised principles are gaining recognition, and the coercive force of municipal law.

In the second section, it was seen that the very operation of the international economic system provided the impetus for its greater harmonisation. A recession, mounting trade conflicts, and the institutional memory of the 1930s provided for a conjunction of interests between the major trading states and corporations that were seeking enhanced market access opportunities. The response of governments was to reinvigorate and reinforce the institutions dealing with trade for both political and economic reasons, which prompted a harmonisation at the level of public international trade law. Thus, for apparently different reasons, both the levels of private and public international trade law are becoming more harmonised and integrated.

But for the project of the Transnational Political Economy, one could hypothesise that these trends at the private and public levels are by no means unrelated aspects of the international political economy. Rather, it would suggest that there may be particular forces that are so constant and universal as to be driving the process. These forces are normative, somewhat deterministic, and operate at the structural level of global capitalism. For the individual merchant, as Berman and Kaufman have stated, the "general similarities of contract practice and contract law are due in part to common commercial needs shared by all who participate in international trade transactions".  87  In other words, the exigencies of a universal situation - buying and selling - has mandated similar behaviour since the act of trading is everywhere becoming increasingly similar. For states, the desire to maintain international stability, the need to manage domestic pressures within increasingly internationalised domestic economies that are susceptible to shifts in technology and production, and the need to compete effectively for reasons of national economic security drives their behaviour in very similar ways. These forces, crudely put, are different manifestations of the forces of global capitalism.

What this suggests is that a multi-layered framework for analysis is required, one which departs from the concrete facts of harmonisation and unification of both private and public international commercial law, and is substantiated by a growing normative consensus. The theory of the lex mercatoria of the discipline of international commercial law was elaborated to illustrate the manner in which the analysis may proceed. It was suggested that this theory seems to be preoccupied with the extent to which the autonomist lex constitutes "law". The exercise, it would seem, has heretofore attempted to elevate the lex mercatoria to the standing of law to impart to it "academic credibility". But surely the fact that the bankers' associations of more than 175 countries endorsed the 1974 edition of the UCP has a very real significance, even if such common usages cannot be regarded as "law". Rather than engaging in what is essentially a semantical discussion of what constitutes law - one could have the same discussion about whether bilateral investment treaties, or even the Resolutions of the UN General Assembly, articulate "law" - it would be preferable to recognise the autonomist conception of the lex mercatoria - as well as the forces for harmonisation at the state level, of the globalisation of multinational corporations, and of the ideology of liberal capitalism - as a component part of a growing "international normative consensus", and that this growing consensus is not self-contained. It lays the foundation for the harmonisation and unification activities, which, in turn, is a symptom of the larger, globalising force of capital.


 87. Richard Boltuck and Robert E. Litan (eds.), Down in the Dumps: Administration of the Unfair Trade Laws, The Brookings Institution, Washington D.C., 1991. See also, "Foreign Trade: Roughing up the Opposition", The Economist, 9 June 1984, p.42.


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