LEX MERCATORIA

LAW MERCHANT

LEX MERCATORIA

• A body of substantive law applicable to international commercial contracts...

LEX MERCATORIA

• ...in the context of international commercial arbitration

quest for third legal order

• Neither municipal law nor international law is appropriate for dealing with international commercial disputes when parties from different countries are involved.

INTRODUCTION

• A national legal system may not be sensitive to the expectations of a disputing party from a different national legal background.

INTRODUCTION

• International law proper may not be adequate to deal with cross-border commercial transactions.

THEORY OF THE LEX MERCATORIA

• Transnational Law
• Transnational Commercial Law
• International Law of Contracts

LEX MERCATORIA DEFINED

• 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

DIFFERENT ASPECTS CONCERNING THE LEX MERCATORIA

1. Is the lex mercatoria autonomous?

Although one national legal system may be autonomous from another, this claim cannot be set forth in the context of lex mercatoria.

Due to its insufficiency in form and substance, it sometimes turns to national legal orders for its implementation, its substance, and its efficacy.

Both national legal orders and the international legal order support and contribute to the lex mercatoria.

IT MAY PROVE ON ITS OWN TO BE A SET OF INOPERATIVE RULES.

IN OTHER WORDS, IT IS IMPOSSIBLE FOR THE TRANSNATIONAL COMMERCIAL PROCESS TO BE TRULY AUTONOMOUS.

2. What are the sources of Lex Mercatoria?

There is a controversy among the proponents concerning the sources.

SOURCES OF LEX MERCATORIA

• General principles of law
• Trade usages

3. What are the contents of the lex mercatoria?

General principles

• The corporate veil may be pierced to prevent a beneficial owner from escaping liability.

fuerza mayor

• Force majeure justifies non-performance of a contract such that the loss is borne fairly by the parties.

buenas maneras

• Contracts that seriously violate bonos mores international public policy are invalid.

enriquecimiento ilicito

• A party may not receive unjust enrichment.

Lex Mercatoria may not always be suitable when State contracts are involved.

Many jurists voiced their objections to the application of the Lex Mercatoria...

...in aribitrations between States and foreign private parties.

4. Can Lex Mercatoria override the parties' express choice of any law other than Lex Mercatoria?

inclusion of

• an arbitration clause
• choice of an international tribunal
• clause referring to international arbitration center

The answer is no.

• The arbitrator is mandated to decide the dispute in accordance with the contract...

LA RESPUESTA ES NO.

• and the contract includes an agreement to abide by the denominated law.

5.Is the Lex Mercatoria universal?

Although the classical law merchant is conceived as a universal and pervasive background underlying every arbitral decision in the field of international commerce...

...the majority of jurists now believe that the lex mercatoria has not attained universality.

muchas gracias!