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[**]

Private International Trade Law:

The traditional view of private international commercial law, as expressed by the Permanent Court of International Justice in the Serbian Loans case, is that: "Any contract that is not a contract between states in their capacity as subjects of international law is based on the municipal law of some country".  3  The object of the court, or arbitral tribunal, under this framework is to give effect to the express choice of law of the parties to a contract, and in absence of such an expressed choice, to determine the "proper" law of the contract through conflict of laws rules. The presumption is that a contract may not "float" independent of any municipal system of law; rights can be acquired only under a particular municipal system of law, and therefore must be enforced with reference to that system.  4  In the traditional view, therefore, the state is the ultimate authority over a contract, be it within a purely domestic, or an international context.

Beginning in the 1950s~e, however, scholars began to challenge this approach, referring to it as an "unwarranted hegemony of municipal law".  5  Indeed, international society has become increasingly more integrated since the Second World War, in that the number of international contacts has been growing, as has the value, volume, and speed of world trade, finance, and investment. Heightened interdependence within the international commercial community had rendered international business so complex as to impart to it a special character, one that is not easily amenable to the application of municipal laws. Municipal law may serve well in the domestic context, they contended, but could not be expected to perform optimally to the needs of, for instance, a multilateral finance agreement with numerous embedded contracts. As De Ly has noted, "it may not only be difficult, but arbitrary to localise some international business transactions in one jurisdiction".  6  This is particularly true if the system with which the transaction has its closest connection is undeveloped in the particular aspect of commerce of concern in the contract. The stability, predictability, and confidence which underpins international commerce would thus be jeopardised if traders suspected suboptimal results from a dispute. This is especially true in the case of contracts between private persons and states, the latter of which has the capacity to exercise the power of eminent domain to change the laws, as sometimes has been done arbitrarily. For all of these reasons, the traditional conflicts of laws approach was deemed to be inappropriate to evolving, and increasingly international, business practices.

Thus, a theory of "transnational law", also referred to as "anational law", "supranational law", "truly international law", "international customs and usages", or a "lex mercatoria", began to be articulated. This "theory" is by no means a coherent set of ideas, and is perhaps better termed a "research programme". For, two distinct approaches to the subject are discernible from the literature. The first, positivist position, views the lex mercatoria as having transnational origins, but which exists only by virtue of states giving effect to conventions and uniform laws by ratification into municipal codes, and by trade usages that are articulated by international agencies. For positivists, therefore, the state remains the ultimate authority over private international trade law. The second, autonomist approach, conceives of an anational, autonomous, self-generating system of laws articulated by the international commercial community for the regulation of its activities. Its practices, usages, and customs, supplemented by the general principles of law recognised by commercial nations comprise a - not yet fully developed - normative order that exists independent of any national system of law.


 3. Quoted in P.M. North and J.J. Fawcett, Cheshire and North's Private International Law 11th. ed., Butterworths, London, 1987, p.485.

 4. See ie., Cheshire, Private International Law, Butterworths, London, 1965, p.36; Dicey, Conflict of Laws, Stevens, 1958, General Principle 5.

 5. Arguably the first was Lambert, writing "Sources du Droit Comparandeacute; ou supranational, législation uniforme et jurisprudence comparative in the 1920s. Most scholars credit Jessup's, Transnational Law, 1956, as beginning the debate. Given the exigencies of space here, it is not possible to provide a comprehensive genealogy of the evolution of the theory. However, this is done with exceptional clarity by Filip De Ly, International Business Law and Lex Mercatoria, North-Holland, London, 1992, esp. chs. 4 and 5.

 6. Thomas E. Carbonneau, "The Remaking of Arbitration: Design and Destiny", in Carbonneau (ed.), Lex Mercatoria and Arbitration, Transnational Juris Publications, Inc., Dobbs Ferry, New York, 1990, p.7.


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