Lex Mercatoria

www.lexmercatoria.org

www.jus.uio.no/lm

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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[**]

Preliminary Observations:

The positivist conception of the lex mercatoria is a theoretically unchallenging "state of the art" snapshot of the culmination of fifty years of the harmonisation and unification activities in international commercial law and practice. However, it is theoretically important for the study of Transnational Political Economy in that it attunes the analysis to the transnational forces that are responsible for the creation of certain rules for the conduct of commercial behaviour, and of these transnational sources of domestic legislation. In other words, it attunes the analysis to the "domesticisation" of the international sources of transnational law.

The majority of attacks on the lex mercatoria have been directed at the more theoretically brave autonomist approach, the majority of which centre around the claim that its corpus of principles lack the coherence, precision, and predictability to be properly called "law". While damaged by often persuasive criticism, the autonomist lex is nevertheless gaining recognition by states and is gaining de facto coercive force by relying on state apparati to enforce awards based upon it in practice.

However, it is unfortunate that the debate in the discipline of international law has centred around this - largely unresolvable - issue of what constitutes "law", given the fundamentally irreconcilable epistemologies upon which its background theories are based. Given this, there is a difficulty in reconciling the positivist and autonomist approaches. For the former, the lex mercatoria exists only if conventions are ratified into domestic legislation, and there is some ambiguity as to whether the autonomy of parties' will can actually subordinate the proper law of the contract. For the latter, it seems that almost "anything goes", without any hard and fast criteria for evaluation and selecting the more valid elements of the theory from the more theoretically weak. Hence, "everything stays", and there is also a danger of stagnation in this theory, notwithstanding the apparent growth in its practical application.

These problems can be overcome, it seems to the present writer, by relaxing the criteria for "law" and accepting that these trends form part of a larger, normative, perhaps Grotian, framework that is increasingly making rules for conduct. It is here that the third "level" of analysis for Transnational Political Economy becomes important. Before venturing to discuss this, the discussion will turn briefly to consider the forces that appear to be driving a similar process of harmonisation at the level of public international trade law.


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