Generalizing the Law Merchant Story (original) (raw)

The Many Lives-and Faces-of Lex Mercatoria: History As Genealogy In International Business Law

Law & Contemp. Probs., 2008

The notion of a lex mercatoria or “law merchant” is being used, in private international law and international business law, to denote a transnational body of norms regulating international business. It is in fact a matter of strong contention both whether lex mercatoria does exist and what its actual content and precise definition is: can we talk of a truly transnational body of law or legal principles, or should we also consider national legislation as a source of transnational business law? Is lex mercatoria created “spontaneously” by the deliberations and practice of a transnational community of merchants, is it principally a child of arbitrators, legal academics, or is the role of governmental and intergovernmental regulation key? The debates about lex mercatoria - in which the descriptive element is hopelessly, if often implicitly, interconnected with normative agendas - put at stake the nature and function of private international law. Lex mercatoria is often promoted as a challenge to the conflict of laws: legal uniformity is to eliminate legal diversity, and the cults of “spontaneous law” and the “commercial man” are claiming primacy over conflict-of-laws ideas of policy considerations and the balancing of values. In this context, history has become an argumentative weapon, used to provide historical pedigree to the lex mercatoria concept (which itself claims less than a half-century of life, in its present incarnation) and to challenge the historical validation of the conflict of laws. Mercatorist literature abounds with histories of lex mercatoria dating all the way from the Bible to the Roman ius gentium to medieval merchants. These references sometimes constitute complete stories, and sometimes casual references; their persistence has recently led to a number of historical essays trying to refute the image the mercatorists present especially of medieval mercantile law. This article examines how the historical narratives are constructed by the doctrinal/theoretical literature on lex mercatoria, and what is their meaning for it. This is the first systematic and comprehensive study of historical narratives in the lex mercatoria narrative, and also the first to link the diverse conceptions of lex mercatoria held by its proponents to diverse historical narratives. The article takes as its starting point the writings of Berthold Goldman and Clive Schmitthoff, the two people widely regarded as the founding fathers of lex mercatoria, and indeed the two principal, contrasting schools of thought among lex mercatoria proponents; the main hybrid schools of thought in recent times are also presented and considered. Each type of narrative reflects the different normative and philosophical views about what the modern lex mercatoria is and ought to be: notably, Schmitthoffian proponents of a law of international business inclusive also of national/legislative sources tend to present an evolutionary or progress narrative, which, while romancing about the role of autonomous merchant communities, also acknowledges the contribution of national legislation at certain points in history. Goldmanian proponents of an a-national lex mercatoria present us a cyclical narrative, where lex mercatoria as the child of commercial practice prospers and then vanishes, as civilization collapses or legal nationalism takes charge. Practitioners or legal economists with emphasis on spontaneous law devise narratives of perpetuity, almost alluding to natural law. The article also studies the more subtle ways in which historical narratives support the claims for a stronger role among the different professional groups investing in the lex mercatoria concept (doctrinal lawyers, legal theorists, arbitrators, business counsel), but also the way in which history is being used to provide a “romance” for the lex mercatoria that helps rally around it a diverse coalition

Three Theories of Lex Mercatoria

One of the most remarkable developments in international commercial law over the last fifty years has been the gradual acceptance of the existence of a new merchant ‘law’, or lex mercatoria, spontaneously generated by the international community in the shadow of national legal orders. While the notion that there might be law beyond the state aroused the interest of legal scholars and theorists around the world, few wondered whether international commercial actors had a genuine interest in the development of an autonomous transnational law. This Article offers empirical evidence suggesting that commercial parties almost never opt into lex mercatoria pursuant to their freedom to contract, but instead use that freedom to select a particular national law to govern their contracts. This conclusion begs the question of whether anybody else might benefit from lex mercatoria. In a groundbreaking article published in 2005, Christopher Drahozal argued that the idea had lost practical signific...

The Lex Mercatoria as Autonomous Law

CLEA 2008 Meetings Paper, 2008

This paper will consider the medieval lex mercatoria (Law Merchant) as a set of autonomous commercial customs, which initially materialized in the form of trade usages and practices, but were ultimately codified in national laws and international conventions, such as the UN Convention on Contracts for the International Sale of Goods (CISG). The paper will focus on the historical development of the lex mercatoria, and will attempt to highlight how the conventional academic debates surrounding have become irrelevant. The thrust of this paper will argue that the lex mercatoria is simultaneously both non-state law and statebased law. It is not created in the state; it is not created exclusively in commerce. Rather, it's created by the law itself. To borrow a term from biology, the lex mercatoria is autopoietic. By "autopoietic" I suggest the lex mercatoria is a type of autonomous organism. It's a self-contained and self-maintaining legal order. But it's not so much a body of substantive law, but rather a process whereby it organizes and produces itself. Paradoxically, in this way it's both autonomous and non-autonomous law.

History of business law: a European history?

2018

The transnational dimension of ius mercatorum, whose very name bears the hallmark of its juridical particularism, led some contemporary jurists to refer to lex mercatoria as an ‘a-national’ legal order. However, this negative definition overlooks the common cultural basis in Europe that has shaped commercial law, a cultural basis that goes beyond just its legal aspects. Indeed, if this deeply ‘proprium’ law sought consistency and harmonisation in Europe, accounting for this phenomenon cannot arguably merely rely on the unstoppable strength of the market. The Early-modern period offers a first-rate testing ground in order to establish whether that shared European legal culture, whatever its authority, has effectively proved a solid, deep-rooted and resilient bulwark against the abrupt changes of the time, whether as a result of the great discoveries overseas or the globalisation of trade.

The development of the modern lex mercatoria : a historical perspective

2005

* This article is based on Wethmar-Lemmer The existence of a modern lex marcatoria (LLM mini-thesis UUJ2005) 1 Sir John Davies The Question Concerning Impositions (1656) 10. 2 For a general overview of Schmitthoff's view on the lex marcatoria, see "International business law: a new law merchant" 1961 Current Law and Social Problems 129-153. 3 Register "Notes on the history of commerce and commercial law" 1913 University of Pennsylvania Law Review 431.