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[**]

Applicability and Coercive Force.

Given the foregoing, the autonomist lex mercatoria can hardly be termed "law". As Highet pointed out, "law" is equated with the command of a sovereign, and is reinforced by the threat of coercive sanction in the case of non-compliance.  49  And, as De Ly has argued, standard forms of contract can hardly be seen as creating an independent legal system. Contracts create enforceable rights, but do not create law. And, after an exhaustive survey of the German, Swiss, Italian, Austrian, Dutch, French, and Belgian legal systems, De Ly concluded that international custom and trade usages have a normative value only and are not recognised as formal sources of law.  50 

However, there is support for alternative conceptions of law, meaning a stable normative system where individuals feel morally bound to observe certain rules of behaviour. To claim that law is a coercive order risks overstating the extent to which a civil society is based upon a series of commands backed by threats. As H.L.A Hart has pointed out with respect to law in general~e, Hans Kelsen with regard to international law, and Friedrich Kratchowil in his discussion on the power of norms~e, the effectiveness of law must not be equated with the effectiveness of the legal sanction.  51  Rational individuals, aware of their long-term self-interest, may observe the norms of their society due to their demand for reciprocity, without the need for a continual threat of negative sanction from the state. For example, one honours one's commitments in good faith in a contract in the expectation that others will also keep their word. It has been suggested that the desire for stability and reciprocity can be so powerful that individuals will accept short-term opportunity costs (ie., reneging on a contract) for the expectation of long term benefits (ie., the sanctity of contract), even if there is no convincing evidence that others will reciprocate in future.  52  This is, in essence, the substance of international law; though not coercive because of ultimate state sovereignty, it is nevertheless "law".

While it is doubtful that this debate could reach a satisfactory conclusion, it is certainly one that could quite easily overrun the confines of this paper. Suffice to say that there are alternative, and equally valid conceptions of "law", within which the lex mercatoria may be classified.  53  But even accepting the positivist definition of law, it appears that the lex mercatoria is gaining in coercive force. Highet is quite right to point out that all arbitral awards must be enforced somewhere. He stated, "a stateless contract only looks like a contract.... As soon as the aggrieved party goes to a court to seek an injunction to force the other party to perform or to go to arbitration, the tribute of alleged statelessness disappears".  54  As will be explained below, even "fully-fledged" delocalised arbitrations, which are neither connected to the forum of arbitration nor which apply any national law, the award is by no means independent of any national legal system, since it must be recognised as valid in the jurisdiction where the party seeks to have it enforced.  55  However, the lex is "borrowing" the coercive apparati of states, as the latter are increasingly recognising it as a legitimate basis for arbitral awards. Indeed, there does appear to be a trend, in the arbitration rules of numerous institutionalised arbitral tribunals, and in the rules for ad hoc arbitration to take into account the lex mercatoria on several levels, and to be given recognition and enforceability through international conventions and national legislations.

In the absence of expressed party choice, Article VII(1) of the European Convention on International Commercial Arbitration (1961), Article 13.5 of the ICC Rules, Article 33(1) of the UNCITRAL Rules, and Article 28(2) of the Model Law enables the arbitrators to select his own conflict of laws rules (note that the arbitrator still must operate within some system of conflicts of laws rules), but to take into account such aspects of transnational law as "trade usages", giving admissibility to the application of the lex mercatoria. In this connection, it is interesting to note that the Iran-US Claims Tribunal, which has adopted, with some modification, the UNCITRAL Arbitration rules, has been mandated under Article V of the Claims Settlement Declaration to employ aspects of the lex mercatoria on two levels. The first regards the conflicts of laws approach, since the Tribunal is free to chose its own choice of law rules. The second relates to the substantive law, the Tribunal is mandated to "decide all cases on the basis of resect for law... taking into account relevant usages of trade, contract provisions and changed circumstances".  56  Moreover, the Iran-US Claims Tribunal is articulating and clarifying many principles of law, such as rebus sic stantibus, of which the Tribunal stated that the concept "has in its basic form been incorporated into so many legal systems that it may be regarded as a general principle of law".  57 

 49. Ibid, p.214.

 50. Mustill, op. cit., p.167, note 57.

 51. Mustill, op. cit., p.179.

 52. Mustill, op. cit., p.161.

 53. Highet, op. cit., p.106.

 54. De Ly, op. cit., p.134.

 55. H.L.A. Hart, The Concept of Law, Oxford University Press, London, 1961.

 56. Friedrich V. Kratchowil, Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs, Cambridge University Press, Cambridge, 1989.

 57. Hans Kelsen, General Theory of Law and the State, (Translated by Anders Wedberg), Russell and Russell, New York, 1961; Kelsen, The Pure Theory of Law, (Translated by Max Knight), University of California Press, Brekeley, 1970.

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W3 since October 3 1993
1993 - 2010

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