Chapter

Framework for an Analytical Account—Clarifying Terminology

Orsolya Toth

in The Lex Mercatoria in Theory and Practice

Published in print January 2017 | ISBN: 9780199685721
Published online March 2017 | e-ISBN: 9780191765711 | DOI: https://dx.doi.org/10.1093/acprof:oso/9780199685721.003.0004
Framework for an Analytical Account—Clarifying Terminology

More Like This

Show all results sharing these subjects:

  • Company and Commercial Law
  • Private International Law and Conflict of Laws

GO

Show Summary Details

Preview

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.

Keywords: lex mercatoria; international business community; trade usage; domestic usage; international trade usage; CISG; implied terms

Chapter.  13123 words. 

Subjects: Company and Commercial Law ; Private International Law and Conflict of Laws

Full text: subscription required

How to subscribe Recommend to my Librarian

Buy this work at Oxford University Press »

Users without a subscription are not able to see the full content. Please, subscribe or login to access all content. subscribe or login to access all content.