Chapter

Framework for an Analytical Account—The ‘Autonomous’ Status of the Lex Mercatoria

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/9780199685721.003.0005
Framework for an Analytical Account—The ‘Autonomous’ Status of the Lex Mercatoria

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This chapter examines the status of the lex mercatoria as autonomous law by discussing the concept of ‘a-national usage’. It is controversial whether the lex mercatoria is an autonomous legal system. The criteria of a ‘legal system’ are often determined arbitrarily and legal positivism ties law to the nation-state. The chapter argues that a paradigm-shift is needed to grasp ‘a-national law’. It selects Herbert Hart’s concept of law, who examines rules within a social group which enables the scrutiny of the international business community. Primary rules and secondary rules help the analysis of the factual existence and legal recognition of usages. Roy Goode’s discussion of trade usages facilitates our understanding of ‘a-national’ usage which need not be recognized by any domestic law, only by the arbitrator. Due to harmonization efforts under the UNCITRAL Model Law and the New York Convention, there are minimal restrictions on arbitrators in this respect.

Keywords: legal system; legal positivism; paradigm-shift; Herbert Hart; Roy Goode; international business community; primary rules; secondary rules; UNCITRAL Model Law; New York Convention

Chapter.  11256 words. 

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

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