The Many Lives - And Faces - Of Lex Mercatoria: History as Genealogy in International Business Law

Abstract

The notion of a lex mercatoria or “law merchant” is being used, in private international law and international business law, to denote a transnational body of norms regulating international business. It is in fact a matter of strong contention both whether lex mercatoria does exist and what its actual content and precise definition is: can we talk of a truly transnational body of law or legal principles, or should we also consider national legislation as a source of transnational business law? Is lex mercatoria created “spontaneously” by the deliberations and practice of a transnational community of merchants, is it principally a child of arbitrators, legal academics, or is the role of governmental and intergovernmental regulation key?

The debates about lex mercatoria - in which the descriptive element is hopelessly, if often implicitly, interconnected with normative agendas - put at stake the nature and function of private international law. Lex mercatoria is often promoted as a challenge to the conflict of laws: legal uniformity is to eliminate legal diversity, and the cults of “spontaneous law” and the “commercial man” are claiming primacy over conflict-of-laws ideas of policy considerations and the balancing of values.

In this context, history has become an argumentative weapon, used to provide historical pedigree to the lex mercatoria concept (which itself claims less than a half-century of life, in its present incarnation) and to challenge the historical validation of the conflict of laws. Mercatorist literature abounds with histories of lex mercatoria dating all the way from the Bible to the Roman ius gentium to medieval merchants. These references sometimes constitute complete stories, and sometimes casual references; their persistence has recently led to a number of historical essays trying to refute the image the mercatorists present especially of medieval mercantile law.

This article examines how the historical narratives are constructed by the doctrinal/theoretical literature on lex mercatoria, and what is their meaning for it. This is the first systematic and comprehensive study of historical narratives in the lex mercatoria narrative, and also the first to link the diverse conceptions of lex mercatoria held by its proponents to diverse historical narratives. The article takes as its starting point the writings of Berthold Goldman and Clive Schmitthoff, the two people widely regarded as the founding fathers of lex mercatoria, and indeed the two principal, contrasting schools of thought among lex mercatoria proponents; the main hybrid schools of thought in recent times are also presented and considered.

Each type of narrative reflects the different normative and philosophical views about what the modern lex mercatoria is and ought to be: notably, Schmitthoffian proponents of a law of international business inclusive also of national/legislative sources tend to present an evolutionary or progress narrative, which, while romancing about the role of autonomous merchant communities, also acknowledges the contribution of national legislation at certain points in history. Goldmanian proponents of an a-national lex mercatoria present us a cyclical narrative, where lex mercatoria as the child of commercial practice prospers and then vanishes, as civilization collapses or legal nationalism takes charge. Practitioners or legal economists with emphasis on spontaneous law devise narratives of perpetuity, almost alluding to natural law. The article also studies the more subtle ways in which historical narratives support the claims for a stronger role among the different professional groups investing in the lex mercatoria concept (doctrinal lawyers, legal theorists, arbitrators, business counsel), but also the way in which history is being used to provide a “romance” for the lex mercatoria that helps rally around it a diverse coalition.

Keywords: lex mercatoria, historiography, legal history, conflict of laws, legal discourse, Clive Schmitthoff, Berthold Goldman, international business law, transnational law, legal cosmopolitanism

JEL Classification: K20, K12, K40, K33, B31, F23