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This chapter provides an overview of the lex mercatoria debate and argues that the discourse suffers from deficiencies. First, there is an overwhelming advocatory style amongst commentators to the detriment of analytical arguments. Second, the debate is fraught with terminological confusions and the term ‘lex mercatoria’ itself is ambiguous. Third, the debate remains isolated from public international law and jurisprudence. The chapter introduces the structure of the debate by identifying the key arguments of the proponents. These arguments fail because they refer to ‘evidence’ of the lex mercatoria to demonstrate its ‘existence’. They point to written documents, including legal harmonization and other codification measures to suggest that the lex mercatoria exists. However, measures such as the UNIDROIT Principles or TransLex Principles do not explain the existence or normative force of unwritten trade usage. Legal pluralism offers a helpful perspective on the topic by distinguishing between ‘existence’ and ‘recognition’ of the law.

This chapter evaluates the key accounts of the lex mercatoria to select the most promising concept. Clive Schmitthoff adopted a wide view of the lex mercatoria and included all written measures, embracing codified contract terms, and international conventions within its ambit. The chapter discusses the status of the UCP and INCOTERMS and concludes that they are contract terms and cannot serve as the governing law. The wide view confuses contract terms with legal rules. Berthold Goldman adopted a narrow view and included customary rules and general principles within the lex mercatoria. He attributed norm-creating potential to the international business community, but failed to exclude written measures. Roy Goode’s purist view clarifies that the lex mercatoria consists solely of unwritten trade usage, whereas transnational commercial law includes written measures. The purist view adopts an analytical approach and remedies the isolation of the debate by considering the circularity paradox of opinio juris.

This chapter examines the lex mercatoria as an autonomous a-national ‘legal system’. It tests a-national law against Hart’s concept of law and explores secondary rules within the lex mercatoria. The chapter argues that a lex mercatoria rule is recognized if (i) conduct and (ii) opinio juris (critical reflective attitude) emerge, which constitute the rule of recognition. The rule of adjudication is applied in arbitration, but most procedural aspects are within the parties’ autonomy which constitute secondary terms of adjudication. Both the rule of recognition and rule of adjudication are procedurally connected to the lex loci arbitri. The chapter argues that the lex mercatoria does not have a secondary rule of change, because its customary rules emerge and whither spontaneously. The secondary rules of the lex mercatoria are not purely a-national, but they fulfil the function of secondary rules in Hart’s thesis and allow the lex mercatoria to operate as law.

This chapter examines the lex mercatoria as the governing law in arbitration and evaluates the status quo by reviewing arbitral awards. It discusses the development of the conflict of laws in arbitration shaped by a tension between territorial conflicts rules and de-localized arbitration. The development has yielded increased party autonomy and arbitral discretion to apply a-national law, reflected for example in the UNCITRAL Model Law or the ICC Rules. Arbitrators have used the concepts of ‘implied negative choice’ or ‘voie directe’ to apply a-national law. The chapter discusses the Westinghouse case to illustrate implied negative choice. It argues that the application of the lex mercatoria depends on whether arbitrators are enthusiasts or sceptics of the concept, which undermines the certainty of the choice of law process. The problem remains that if we do not know what the lex mercatoria is, it is impossible to determine when and how it applies.

The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Stone Sweet’s paper traces the development of a transnational legal system, comprised of a national contract law and a network of arbitration houses that compete to supply third-party dispute resolution to the international commercial world. The paper is divided into two parts. The first discusses, in a theoretical manner, obstacles to the emergence of a stable network of traders engaged in relatively long-range, impersonal exchange, focusing on three generic problems of human community: cooperation and commitment, transaction costs, and institutional choice and governance. The second part examines three quite different regimes that have governed transnational commercial activity: from the mediaeval law merchant, to the Westphalian state system and its institutional failings (including discussion of conflict of laws practices), and – the principal focus of the chapter – the new Lex Mercatoria and its institutionalization.

The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Shapiro’s paper, which was originally published in The State and Freedom of Contract (ed. Harry Scheiber, Stanford University Press) in 1998) first introduces the Lex Mercatoria (the law of merchants) in relation to freedom of contract and contract law, and then discusses globalizing tendencies in contract law, doctrine, and jurisprudence, before moving on to globalizing tendencies in contract practice, using the legal doctrine of conflict of laws as a baseline for measurement of globalization tendencies. Here, Lex Mercatoria (or general principles of law) often play a substantial part in the resolution of contract disputes, particularly where arbitration is involved. Shapiro goes on to deal with the unification of private law in the United States in the 1920s (the trans-state harmonization of contract law), which he uses as a benchmark to assess the massive post-Second World War movement to a global law of contract. Aspects addressed include the globalization of contracting practice and law, the American-style contract (in relation to franchising law and mineral (non-oil) development contracts), and developments in business organization and law institutions.

This chapter explores the relationships between the concept of a legal system and non-state law. It considers the question why the former (the concept of a legal system) is useful and even necessary for the second (the definition of non-state law), and addresses one immediate consequence that follows from this. The chapter first discusses the point in the abstract. It then illustrates the point by referring to the lex mercatoria, as the forerunner of the current theories on arbitration as transnational law.

This chapter explains the importance of proper law in arbitration, especially in ensuring a speedy resolution of the dispute. It first considers the importance of proper law from three aspects: the advantages of international commercial arbitration, the expectations of the parties, and the validity of arbitral awards. It then discusses the different types of proper law and how the proper law is determined for arbitration proceedings. It also examines the limitations on the parties' expressed choice of the proper law; the ‘implied choice of law’ test; the ‘closest and most real’ test; the three-step and two-step choice of law rules; application of international law as the proper law of a contract; application of general principles of law in ad hoc arbitration; application of the new lex mercatoria; and application of amiable composition.

This chapter makes terminological clarifications to develop the framework for the proposed account of the lex mercatoria. It argues that the ‘international business community’ should be perceived as a group of individual businessmen. It argues in favour of a de-localized business community organized along the various industries, rather than on a territorial basis. Group members create lex mercatoria rules through their conduct and can cross geographical boundaries. The emerging rules are thus truly ‘a-national’. The chapter discusses the meaning of ‘trade usage’ and argues that it should mean spontaneous conduct-based rules, rather than contract terms. The ‘implied terms doctrine’ is inappropriate in this context since it refers to domestic usage. The chapter examines the notion of ‘international trade usage’ under the CISG and concludes that it is inadequate for the proposed account because the validity of trade usage remains outside its scope and within the ambit of domestic laws.

Reciprocal justice — justice in exchange — is the justice proper to the trading order in which people make their livelihoods in a market society. This chapter concentrates on the analysis of that justice, but also discusses the relationship between the reciprocal justice proper to trading and justice in the political and social orders. It suggests that because the function of a trading order is to facilitate the reassignment of ownership through mutually agreed exchange, the justice within the trading order is not, and cannot be, concerned with the overall outcome at any given time of the assignment of participants' resources. The chapter also examines the complementary roles of nature and convention in reciprocal justice, the elements of exchange, the lex mercatoria or ‘law merchant’, the relation between reciprocal justice and entitlements in the trading order; and the roles of choice, morality, and rationality the trading order.

This chapter makes proposals to increase the predictability of choosing the lex mercatoria as the governing law by relying on the proposed theoretical model. It argues that ‘voie directe’ is not the negation of conflict of laws, but an autonomous conflicts rule which enables arbitrators to select a-national law to safeguard the parties’ reasonable expectations. The parties’ membership within the same business community should be a new de-localized objective connecting factor which links the dispute to the lex mercatoria. This new connecting factor may be used under ‘voie directe’ discretion or the closest connection test. The notion of ‘implied negative choice’ should be discarded, because it is an objective method akin to voie directe, as the Westinghouse case demonstrates. The chapter proposes a test for a ‘real’ implied choice and offers clarifications for an express choice of the lex mercatoria to assist parties with drafting their choice of law clause.

This chapter discusses the method of establishing a lex mercatoria rule in practice. The analysis is relevant in arbitration where the lex mercatoria applies and in court proceedings where trade usages must be established. The status of usages is currently unsettled in practice. Arbitral rules, such as the ICC Rules, give little guidance on establishing a relevant usage. Witness evidence often contains an ‘opinion’ on the existence of a usage which manifests the circularity paradox of opinio juris. The chapter discusses the General Reinsurance v Fennia Patria case to examine the two elements of a lex mercatoria rule: (i) congruent majority conduct followed out of a (ii) critical reflective attitude by the majority on the market. If the evidentiary process focuses on these factual criteria, that will increase legal certainty. The chapter considers the scope of available documentary evidence, the content of witness statements, and the selection of witnesses.

The Introduction describes the stages of the analysis and the methodology adopted in the book. It argues that the lex mercatoria debate is currently incoherent because proponents suggest that the lex mercatoria factually exists, whereas opponents submit that it is not legally recognized. A coherent discussion must take into account both the factual existence and the legal recognition of the lex mercatoria. The analysis in the book proceeds in four stages. First, it evaluates the existing accounts of the lex mercatoria and selects the most promising concept. Second, it develops the framework and central categories of the proposed account. Third, it opens up the discourse to public international law and jurisprudence. Fourth, it examines practical issues of choosing the lex mercatoria as the governing law and the proof of a lex mercatoria rule. The Introduction argues that a paradigm-shift is necessary to grasp the lex mercatoria as ‘a-national law’.

This chapter opens up the lex mercatoria debate to public international law to remedy the isolation of the discourse. It analyses a ‘rule’ of the lex mercatoria by focusing on the latter of its two elements: (i) conduct and (ii) opinio juris. The function of opinio juris is to distinguish between non-normative and normative conduct. The concept is controversial because it leads to a circularity or chronological paradox. Commercial practice raises parallel issues when mere habits must be distinguished from a legal rule on the market. Public international lawyers have suggested various ‘solutions’ to the paradox, by keeping only one element or deriving custom from consent. The chapter argues that the two-element approach should be preserved and developed in the lex mercatoria context. It proposes a distinction between opinio juris in the pre-rule phase and the post-rule phase respectively to offer a chronologically linear model of customary law formation.

This chapter deals with what the choice of English law as the applicable law may mean in a contract drawn up in the civil law tradition between parties from civil law countries. It discusses the differenced on issues like good faith and public policy. The chapter further raises the questions whether the operation of a domestic law in an international contract, chosen by the parties or not, is the same as the operation of the same law in a domestic contract, and of the position of lex mercatoria.

This chapter highlights the multi-level architecture in which contract law operates in Europe and makes a plea for this governance structure to be taken far from seriously in the design of European contract law. The chapter introduces the general theme of multi-level governance before analysing the interaction between national and European levels of governance. It then examines the additional normative layers - international and Lex Mercatoria – in order to reveal the complex, fluid, interlocking and heterarchical European legal space. Normative pluralism emerges as an inevitable feature in private law making it essential that the EU conditions its private law programme to this plural reality. However, the Commission’s ability to respond to the legal environment is hampered by methodological nationalism. In addition, the national jurist has often responded inadequately to the post-national challenge of multi-level governance, basing resistance to European harmonisation on inappropriate, nationally-tied notions of coherence and culture.

Using an example drawn from international financial contracts and their interpretation in the light of national insolvency laws, this chapter examines the idea of privately created transnational commercial law (or lex mercatoria) and how it does, or may, address the inherent defect of legitimate norm creation by private actors such as banks—that its rules are likely to ignore externalities, the general interest, social justice, human rights, and public policy generally. The question of the extent to which national courts recognize transnational commercial law, fabricated through standard form contracts, and how they conceive its relation to national mandatory norms lies at the heart of the issue of whether lex mercatoria achieves a transformation from contract to normative order, or how contracts provide part of the system of governance for international trade.

The conclusion summarizes the challenges of developing an analytical account of the lex mercatoria and indicates areas where further debate may be expected in the future. The aim of the book was to propose a model of the lex mercatoria which is theoretically justified and pragmatic. This required a departure to the fields of public international law and jurisprudence and the scrutiny of controversial issues in these fields. The inquiry advanced three underlying arguments. First, it focused both on the factual existence and the legal recognition of the lex mercatoria. Second, it proposed a paradigm-shift to help us grasp a-national law. Third, it perceived the lex mercatoria as a pragmatic concept the purpose of which is to facilitate commercial practice. The proposed model leaves scope for future debates. It remains to be seen whether and to what extent parties and arbitrators will be more willing to select the lex mercatoria.

This chapter describes aspects of international arbitration culture that arise from the values shared by international arbitrators. It identifies four categories of social norms that correspond to those values: party autonomy, the service of business, neutrality, and internationalism.