Academic journal article Law and Contemporary Problems

The Many Lives - and Faces - of Lex Mercatoria: History as Genealogy in International Business Law

Academic journal article Law and Contemporary Problems

The Many Lives - and Faces - of Lex Mercatoria: History as Genealogy in International Business Law

Article excerpt

"Lex mercatoria is a venerable old lady who has twice disappeared from the face of the earth and twice been resuscitated. " (1)

I

INTRODUCTION

For over a half century, it has been claimed that cross-border business transactions are governed by a transnational body of norms specific to international trade, generally known as lex mercatoria, the "law merchant." This legal phenomenon is in fact often described as the "new" lex mercatoria, as distinguished from the "ancient" law merchant, which purportedly flourished in medieval and early modern Europe.

Reading about lex mercatoria is reminiscent of the proverbial Arlesienne: we never get to see her but everyone talks about her. (2) In fact, many have denied lex mercatoria's existence. (3) Between skeptics and "mercatorists," a veritable lex mercatoria discourse has been created. (4) Alongside doctrinal lawyers from several legal fields (the vibrant new field of international business law, the conflict of laws, commercial law, even contract law), the discourse has come to involve an increased number of legal theorists--including socio-legal scholars (5) and legal economists of various stripes. (6)

A. What Is Lex Mercatoria?

Lex mercatoria has been variously described by its advocates as "a set of general principles and customary rules spontaneously referred to or elaborated in the framework of international trade, without reference to a particular national system of law," (7) a "regime for international trade, spontaneously and progressively produced by the societas mercatorum," (8) "a single autonomous body of law created by the international business community," (9) "a hybrid legal system finding its sources both in national or international law and in the vaguely defined region of general principles ... called 'Transnational law'" (10)--but also as "[the] phenomenon of uniform rules serving uniform needs of international business and economic co-operation,"" or as consisting of "all law stemming from or under the influence of transnational sources of law and regulating acts or events that transcend national frontiers." (12) The divergence of opinion is noticeable even at the level of definition.

There is disagreement as to the legal nature of lex mercatoria (is it a "legal system" complete with its metanorms, a "body of law" less systematic but rather coherent, or a "phenomenon"?), as to the process of its creation (spontaneous or evolutionary), and as to the lawmaking role of business actors themselves. The main dividing line concerns the relationship of lex mercatoria with state law and more generally the states system. There are two main camps: the former--call them "purists" or "autonomists"--insist on the "a-national" or "stateless" character of lex mercatoria. The latter--call them "integrationists"--insist on the ability to "freely combine elements from national and non-national law." (13)

For all these approaches to come together under the banner of lex mercatoria, there must be a common cause, and some value in the name itself. (14) Indeed, all mercatorists seem to share a minimum degree of commitment to, and desire for, the existence of certain norms (and dispute-settlement mechanisms) distinct from--and possibly transcending--"traditional" state law and "municipal" legal forms and institutions. Such normative commitment is not limited to doctrinal lawyers; even socio-legal theorists, such as Gunther Teubner, who appear uninterested in the optimal regulation of international commerce by itself, look to lex mercatoria as a key example of the existence of stateless, autopoetic, or global regimes. (15) But not everyone under the banner views lex mercatoria as the inevitable adversary of state law. For some, it seems to epitomize a sensibility of legal cosmopolitanism--as in the comparative consideration of foreign legal material, or in evocations of "natural" law. (16)

In the end, regardless of whether an autonomous legal system of transnational commercial law exists now or shall exist in the near future, today lex mercatoria exists as a concept, with strong resonance and powerful symbolic capital. …

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