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n Stellenbosch Law Review = Stellenbosch Regstydskrif - Die nuwe lex mercatoria
There seem to be only two known and accepted facts regarding the modern lex mercatoria, firstly that the concept was introduced by Berthold Goldman in 1964 and secondly that the existence thereof has been questioned ever since.
The question therefore arises whether international trade is ruled by the so-called new lex mercatoria. In this regard there are two directly opposin views. One is that international trade has developed its own set of rules separate from those of the national states. These rules were developed specifically to comply with and satisfy the unique needs of international trade and are enforced through international arbitration. Another approach is that no such set of rules exists and that there is also no need for such a system if the the principles of conflict of laws (or international private law) are applied consistently. The proponents of this approach also argue that the lex mercatoria does not really exist, because it has not been linked to state sovereignty. In contrast to this it has been argued that the developments in the field of international mercantile law (more than the international law or the classical driot international public) may even find its application in the national law, as in the case of the 1980 United Nations Convention on Contracts for the International Sale of Goods. The development of other international instruments and treaties point towards the increasing harmonisation of international mercantile law and serves as an example of an international mercantile law that is fixed, certain, predictable and reasonable, yet still leaves room for the acknowledgment of the contractual freedom of the parties involved in the agreement.
This article sets out the different arguments on whether international trade is ruled by the so-called new lex mercatoria and proposes that there is a middle ground between these two directly opposing views.
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