A Power Struggle or the Assertion of Rights: Application of the Lex Mercatoria in International Commercial Arbitration

Abstract

A prominent attribute of international commercial dispute in contemporary times is the notably increasing occurrence of the usage, particularly by arbitral tribunals, of ‘anational’ systems of law to the settlement of such disputes, instead of municipal law(s) of one or more countries. The literature reveals that, this is because an arbitrator has a responsibility to apply the rule or choose the solution, which appears to him to be the most appropriate and equitable. Since arbitral tribunals are not constricted in the choice of law for the settlement of disputes, a tribunal is far more likely to adopt an ‘anational’ system of law in the course of international commercial dispute settlement. One such usage has been the application of the lex mercatoria, as the law applicable to the merits of a dispute.

Keywords: Lex Mercatoria, International Commercial Arbitration