A Plural Account of the Transnational Law Merchant

(2011) 2(3) Transnational Legal Theory 309–345

UNSW Law Research Paper No. 2012-19

38 Pages Posted: 26 May 2012

See all articles by Leon Trakman

Leon Trakman

University of New South Wales (UNSW) - Faculty of Law

Date Written: May 14, 2012

Abstract

The Law Merchant is depicted today as a transnational system based on merchant practice operating outside the fabric of national law. It is conceived as cosmopolitan in nature, universal in application, expertly delivered, and independent of other regulatory systems.

This article critiques these qualities attributed to the historical as well as present-day Law Merchant. It disputes that it has evolved ‘spontaneously’ out of merchant practice; that it is uniform in nature; and that it transcends national law. It argues instead that the Law Merchant is often fragmentary in nature and subject to disparate national and transnational influences. It challenges, in particular, unitary conceptions of ‘autonomy’ ascribed to the Law Merchant, presenting a pluralistic conception of Law Merchant ‘autonomy’ instead. It illustrates these arguments in relation to the so-called Cyberspace Law Merchant and to transnational commercial arbitration.

Suggested Citation

Trakman, Leon, A Plural Account of the Transnational Law Merchant (May 14, 2012). (2011) 2(3) Transnational Legal Theory 309–345, UNSW Law Research Paper No. 2012-19, Available at SSRN: https://ssrn.com/abstract=2066267

Leon Trakman (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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