The Twenty-First Century Law Merchant
47 Pages Posted: 31 Aug 2011 Last revised: 7 Feb 2012
Date Written: August 23, 2011
This article examines the multifarious conceptions of the Law Merchant, focusing on its attributes as a spontaneously ordered and plurally autonomous framework of law. Part I considers the economic rationale that the Law Merchant has evolved spontaneously. Part II investigates the autonomy values that are associated with a Law Merchant system, the degree to which those values are commensurable with one another, and the prospects of mediating among them. Part III considers whether the Law Merchant is truly an independent merchant system, whether it is uniform in nature, and whether it has resisted fragmentation through its localization within domestic legal systems. Parts IV and V, evaluate the extent to which a liberalized Law Merchant has evolved into the twenty-first century, the influence of micro-economic interests such as the autonomy rights of merchants upon it, and the practices of nation-states in “nationalizing” or “trans-nationalizing” it structurally, substantively, and procedurally. Part VI examines the extent to which these features can be applied to the example of transnational arbitration. The article concludes that abstract notions of a cohesive Law Merchant, entailing romantic conceptions of its origins and current subsistence, are to be discouraged. Instead, greater attention should be given to particular facets of the Law Merchant as it exists in the transnational commercial world today, especially the ways in which a universalized Law Merchant interacts with regulation at domestic and multistate levels.
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