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[**]

The Autonomist Perspective.

The autonomous view sees the lex mercatoria as a universal body of substantive, anational rules which have been articulated by the international commercial community and which exist independently of any municipal system. According to this view, international commerce has a "sui generis character that warrants a special, separate regime of governance".  16  In fact, Goldman argues that commerce never has been confined to territorial boundaries, and harkens back to the ius gentium of Roman law.  17  This autonomous order is seen to rest on three pillars: the every-day practices of the international business community, the codified usages in international conventions, and the general principles of law.

The autonomous order is "spontaneous", because it rests upon the will of the parties, who create rules best suited to their particular needs. Such rules include mainly international customs, usages, and contract terms which are used with frequency by the international business community. For the autonomist perspective, the fact that traders repeatedly act in the same ways and subsequently feel bound by such precedents of behaviour is evidence of a process of articulating a code of behaviour, an autonomous legal order specific to that community. Codified usages and international conventions are seen to form the formal part of the lex mercatoria because they are legitimated and can be enforced. Supplemented by general (meaning universal) principles of law, this order is seen to form substantive transnational rules. Distilled from a vast literature, these general principles have been enumerated by Lord Justice Mustill as (in abridged form)~e:

1. Pacta sunt servanda (contracts should be enforced according to their terms);

2. Rebus sic stantibus (substantially changed circumstances can entail a revision of contract terms);

3. Abus de droit (unfair and unconscionable contracts should not be enforced);

4. Culpa in contrahendo;

5. Good faith;

6. Bribes render a contract void or unenforceable;

7. A state may not evade its obligations by denying its own capacity to make an agreement to arbitrate;

8. The controlling interest of a group of companies is regarded as contracting on behalf of all members;

9. Parties should negotiate in good faith if unforseen circumstances arise;

10. "Gold clause" agreements are valid and enforceable;

11. One party may be released from its obligations is there is a fundamental breach by the other;

12. No party can be allowed by its own act to bring about a non-performance of a condition precedent to its own obligation;

13. A tribunal is bound by the characterisation of the contract ascribed to it by the parties;

14. Damages for breach of contract are limited to the foreseeable consequences of the breach;

15. A party which has suffered a breach of contract must mitigate its losses;

16. Damages for non-delivery are calculated by reference to the market price of the goods and the price at which the buyer has purchased equivalent goods in replacement;

17. A Party must act promptly to enforce its rights, lest lose them by waiver;

18. A debtor may set off his own cross-claim to diminish his liability to a creditor;

19. Contracts should be construed according to ut res magis valeat quam pereat;

20. Failure to respond to a letter is regarded as evidence of assent to its terms.

Thus, the sources of the autonomous lex mercatoria, as compiled from various authoritative enumerations, are: public international law; uniform laws and conventions; trade usages and customs, including standard form contracts, which are observed in the behaviour of the international commercial community; general principles of law common to commercial states, which are discovered through a comparative approach; the rules of international organisations; and the reports of international commercial arbitral awards.  18 


 16. See note 9, supra.

 17. Schmitthoff, "The Unification of the Law of International Trade", op. cit., p.182.

 18. Schmitthoff, "The Law of International Trade", Commercial Law in a Changing Economic Climate, 2nd. ed., 1981, pp.18-31 (Reprinted in Chia-Jui Ceng, op. cit., pp.219-230).


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