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Lex Mercatoria
A presentation at the ELA seminar Contracting
in Europe in Tromsoe, 5 March 2003 by Associate
professor, dr.juris Petri Keskitalo The faculty
of Law, University of Tromsoe
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Lex Mercatoria
1) What is it?
2) Where do we find it?
3) How to use it?
4) When to use it?
5) What advantages has it to offer?
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1) What is the lex mercatoria (LM) or law
merchant?
- As many definitions as there are writers and
approaches
- Basically there are two approaches a) LM as a
method b) LM as a body of legal norms that are
created by the trade community to serve the needs
of international trade
- The latter approach can have three alternative
goals i) LM merely as a trade usage ii) LM as an
evolving autonomous a-national legal order iii)
LM as customary law
- The concept of LM dates back to at least the
Middle Ages and has been doing a comeback since
the 1960s
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2) Where do we find the lex mercatoria?
- Depending on the approach and goal chosen, the
sources of the LM are various i) general
principles of international contract law ii)
trade usage iii) arbitration awards iv) standard
contracts v) standard legal instruments of
international commercial law vi) international
conventions
- There are two alternative approaches to the
compilation of the LM a) Restatements b)
Creeping codification
- Three alternative suppliers of compilations
of the LM i) UPICC (UNIDROIT Principles of
International Commercial Contracts ii) PECL
(Principles of European Contract Law) iii) TLDB
(The CENTRAL database on Transnational Law)
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3) How to use the lex mercatoria?
- Basically there are two alternative uses for
the LM
a) LM as the (partial) law of the contract
either by the contract parties, arbitration
tribunals or national courts
b) LM as a source for gap-filling regarding
contracts or the law
either by arbitration tribunals or national courts
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4) When to use the lex mercatoria?
Contracting parties - at any time as they please
Arbitration tribunals - when the contracting
parties have so provided either by a) direct
reference to LM or b) reference to general
principles of international - when the
contracting parties have given the arbitrator the
powers of amiable compositeur or ex aequo et
bono - when the procedural arbitration law makes
a reference to rules of law instead of rule of
law - when the law of the contract needs to be
interpreted or gap-filled
National courts - occasionally
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5) What advantages has the lex mercatoria to
offer?
- Rules and principles that are designed for the
purpose of modern international trade
- Avoidance of the conflict of laws jargon?
- Higher predictability and certainty?
- Lower transactions cost a) in negotiating? b)
in interpretation? c) in litigation?
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THE END