New Lex Mercatoria

The “Lex Mercatoria “concept was rediscovered in the late 1950s and early 1960s. It probably started by the French comparatist Berthold Goldman. In an article in the ‘Le Monde’ in 1956, Goldman’s opinion was that the Suez Canal company was not of Egyptian, English, French or mixed nationality even though it could be considered as a juridical person of private law. Due to its particular capital structure, its organization and its activities, he mantained that the status of the Suez Canal Company, both in terms of its legal source and its legal nature, was in his view ‘essentially international’, with a transnational character.

In the wake of this notion of transnationalism, Fragistas and Goldstajn published law review articles in the early 1960s, the first on the transnationalization of arbitral procedure , the second on the evolution of an autonomous law merchant across the iron curtain. In 1964, Goldman, in his article in the Archives de philosophie du droit of 1964, ended with the statement:

“The lex mercatoria fits well into the domain of the law, both in terms of substance and in terms of form. It remains to be seen whether the interests, which it seeks to satisfy, are sufficiently balanced to guarantee the legitimacy of its rules. But that is, as Kipling would say, another story”

Note: some text may be based on the translex website.

• Graeme B. Dinwoodie, A New Copyright Order: Why National Courts Should Create Global Norms, 149 U. PA. L. REV. 469, 475 (2000) (arguing that a lex mercatoria “could, with appropriate adaptation, contribute to the development of International copyright standards” );
• Ken Foster, Is There a Global Sports Law?, 2 ENT. L. 1, 10 (2003) (“Lex sportiva deliberately invokes the concept of lex mercatoria.” );
• Lawrence M. Friedman, Erewhon: The Coming Global Legal Order, 37 STAN. J. INT’L L. 347, 356 (2001) (stating that the original lex mercatoria was based on mercantile custom in the Middle Ages); I. Trotter Hardy, The Proper Legal Regime for “Cyberspace,” 55 U. PITT. L. REV. 993, 1019-21 (1994) (analogizing cyber law to the medieval law merchant as a “bottom up” customary law);
• Brian F. Havel & Gabriel S. Sanchez, The Emerging Lex Aviatica, 42 GEO. J. INT’L L. 639, 658-59 (2011) (analogizing a proposed global aviation regulatory system to the law merchant);
• David R. Johnson & David Post, Law and Borders-the Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1389 (1996) (“Perhaps the most apt analogy to the rise of a separate law of Cyberspace is the origin of the Law Merchant-a distinct set of rules that developed with the new, rapid boundary-crossing trade of the Middle Ages.” );
• Friedrich K. Juenger, American Conflicts Scholarship and the New Law Merchant, 28 VAND. J. TRANSNAT’L L. 487, 490-91 (1995) (describing conflict-of-law rules that developed independently of government as part of “the supranational lex mercatoria” );
• Paul R. Milgrom, Douglass C. North & Barry R. Weingast, The Role of Institutions in the Revival of Trade: The Law Merchant, Private Judges, and the Champagne Fairs, 2 ECON. & POL. 1, 2 (1990) (studying reputation mechanisms during the medieval revival of trade when, “without the benefit of state enforcement of contracts or an established body of Commercial law , merchants evolved their own private code of laws (the Law Merchant) with disputes adjudicated by a judge who might be a local official or a private merchant” );
• Irineu Strenger, La notion de lex mercatoria en droit du commerce international, 227 RECUEIL DES COURS 207, 253-60 (1992) (conjuring up images of the ancient law merchant as autonomous, cosmopolitan, and transnational);
• Leon E. Trakman, From the Medieval Law Merchant to E-Merchant Law, 53 U. TORONTO L.J. 265, 269, 275-76 (2003)
• Benito Arruñada, Institutional Support of the Firm: A Theory of Business Registries, 2 J. LEGAL ANALYSIS 525, 532 n.8 (2010);
• H. Allen Blair, Hard Cases Under the Convention on the International Sale of Goods: A Proposed Taxonomy of Interpretative Challenges, 21 DUKE J. COMP. & INT’L L. 269, 276 (2011);
• Isaac DiIanni, The Role of Competition in the Market for Adjudication, 18 SUP. CT. ECON. REV. 203, 227 (2010);
• Bryan Druzin, Buying Commercial law : Choice of Law, Choice of Forum, and Network Externalities, 18 TUL. J. INT’L & COMP. L. 131, 161-62 (2009);
• Bryan Druzin, Law Without the State: The Theory of High Engagement and the Emergence of Spontaneous Legal Order Within Commercial Systems, 41 GEO. J. INT’L L. 559, 582-84 (2010);
• Nuno Garoupa & Carlos Gómez Ligüerre, The Syndrome of the Efficiency of the Common law , 29 B.U. INT’L L.J. 287, 328-29 (2011);

Author: admin

Author: admin

Mentioned in these Entries

Commercial law, Common law, International copyright, Lex Mercatoria, Outline of Legal framework for international business transactions, Trans-Lex.