Lex Mercatoria



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The "Transnational" Political Economy:

A Framework for Analysis.[*]

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


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:




Sovereignty, Authority, and Governance:





SiSU Metadata, document information


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[**]

Sovereignty, Authority, and Governance:

Finally, there is the important issue of governance in the international political economy. It would seem that in some areas, states have lost sovereignty by design. In public international trade law, the signatories of the GATT have progressively relinquished their control over tariffs and quantitative restrictions through the General Agreement on Tariffs and Trade, and have recently begun to articulate rules for new areas of trade. They also have imparted greater coercive force to international trade institutions, such as the newly created arbitral procedures of the World Trade Organisation, and the arbitral tribunal in the North American Free Trade Agreement.

In other areas, states have lost authority by virtue of the forces of globalisation. In private international commercial law, it was seen above that the lex mercatoria gained increasing currency that states were forced to take this into account, and thereby reduced their ability to enforce the application of their own municipal codes.

One could argue in the latter case that authority in this area was ceded to anational, or transnational commercial rules, by states since they permitted their courts to apply them. However, at this juncture, it is interesting to note that the processes of globalisation at the individual level, which suit individual merchants and which supersede the state, does, nevertheless erodes the authority of the state. And, the globalisation driven by states, at least in international trade, appears to entail some insecurities at the individual, or social level. As the issues on the agenda of the GATT Uruguay round negotiations diversified away from strict considerations of tariffs, this entailed economic security implications for some farmers in Europe, national insecurities for the preservation of "culture" in France, ecological insecurities as regards the environment, and even human insecurities in developing countries with regard to the protection of pharmaceutical property rights.

Finally, a distinction needs to be made between de facto and de jure loss of sovereignty. For instance, while states remain empowered with eminent domain to expropriate foreign assets consistent with international law, it is doubtful that they will take any measures that will contravene the aura of being a hospitable environment for foreign investment. Moreover, there are some issues concerning multinational corporations that are not settled, such as whether the MNC has a "nationality", if so how it is to be determined, or whether it is a truly transnational enterprise. In other areas, such as taxation, transfer-pricing, and the ability of MNCs to make a mockery of state-imposed trade barriers by selling "foreign" products within a state's market through shifting production within tariff walls, to name but a few, there is clear tension between the territorial state and the globalisation of production.  96  It must therefore be recognised that whilst states maintain real, legal sovereignty, at both the sphere of private and public international commerce, it is no longer as pervasive and indissoluble as it was, even as recently as the late 1960s.  97 

It is hoped, therefore, that an examination of these issues within the multi- level framework will highlight not only the forces of harmonisation, in a positivist sense, but also the tensions that exist between territorial sovereignty and transnational normative forces. The project would produce a dynamic picture of the growth of the international political economy, and importantly, raise the question, to what extent does the state maintain sovereign authority over the issues outlined above within this normative transnational structure? And, what are the sources of authority in the transnational political economy? At this very early stage of research, the author would be very receptive to constructive comments!

 96. Michael S. Minor, "The Demise of Expropriation as an Instrument of LDC Policy", Journal of International Business Studies, Vol.25, No.1, 1994, esp. table on p.180.

 97. OECD, Promoting Private Enterprise in Developing Countries, OECD, Paris, 1990, p.36.

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

W3 since October 3 1993
1993 - 2010

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hosted by The University of Oslo, Norway, since 1998
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