Some Critical Comments on the Juridicity of Lex Mercatoria

Abstract

This article discussed the legality of the lex mercatoria, that it whether lex mercatoria can be considered law. It is divided into three Parts, which reflect the three main views of the nature of the lex mercatoria, in an order that starts with the most watered-down acceptance of the lex mercatoria and ends with the most ambitious one. It may be pointed out that these different views of the lex mercatoria are assessed not according to their appeal, workable character, or popularity in practice, but only with respect to their accuracy as theoretical constructs.

Part I examines the idea that the lex mercatoria is merely a method of decision making used by arbitrators. This view relies on the idea that the lex mercatoria is a method of rule-selection, ac- cording to which rules are extracted from other legal systems (typically national ones), reinterpreted and adapted to international commerce, and applied in this new guise. The analysis will show that this view implicitly and necessarily relies on the idea that the lex mercatoria is, in fact, a legal system of its own.

Part II delves into the view that the lex mercatoria is not a legal system, but merely a set of legal rules. The discussion will show that this view is fundamentally flawed, inasmuch as that which makes rules legal is their belonging to a legal system, which legal system is necessarily the lex mercatoria itself.

Part III then critically analyzes the lex mercatoria as a legal system of its own, and concludes that it fails to meet certain requirements of structure and that its normative contents lack certain formal qualities, which all are essential features of a legal system. The article concludes that the lex mercatoria is not law, that it is in and of itself devoid of jural character, that it is not an instance of legal pluralism.

Keywords: international arbitration, transnational law, lex mercatoria, Lon Fuller, legal philosophy, concept of law