The Procedural Lex Mercatoria: The Past, Present and Future of International Commercial Arbitration

Abstract

This paper begins by suggesting that the substantive Lex Mercatoria is showing signs of growing formalisation, evident in the progression from the 1980 UN Sales Convention (CISG) to the more detailed provisions of the 1994 UNIDROIT Principles of International Commercial Contracts (UPICC). Similarly, international commercial arbitration law and practice became increasingly formalised over the 1980s. However, since the late 1990s there have been signs of a shift back towards more informalism - especially attempts to regain the advantage of speedier proceedings compared to cross-border litigation - and, often relatedly, more global solutions to major issues arising in the arbitration world. The paper urges further and consistent developments in both respects, leaving the broader question of whether the substantive Lex Mercatoria also may be due for a swing back towards less formal norm-setting.

Updated and more pessimistic assessments along these lines can be found in my SSRN papers entitled "In/Formalisation and Glocalisation of International Commercial Arbitration and Investment Treaty Arbitration in Asia" (2014, ID 2987674) and "A Weathermap for International Arbitration: Mainly Sunny, Some Cloud, Possible Thunderstorms" (2015, ID 2630401).

Keywords: arbitration, contract law, comparative law

JEL Classification: K41