Practical and Theoretical Implications of the Lex Mercatoria for Japan: Central's Empirical Study on the Use of Transnational Law

Abstract

This article analyses results from a major empirical study, completed in 2000 by Professor Klaus Peter Berger and his team at the Center for Transnational Law (CENTRAL), examines current practices and perceptions in both trans-border arbitration and contracting - what they refer to generically as Transnational Law or which others have dubbed the new lex mercatoria.

Their survey confirmed considerable application by practitioners of transnational norms (such as the UNIDROIT Principles of International Commercial Contracts, or more inchoate formulations) in contract negotiations, drafting, and especially dispute resolution through arbitration. Japan played a small but significant role in this practice. English practitioners remained distinctly more skeptical about the lex mercatoria, however, arguably reflecting their legal system's persistent orientation towards more formal reasoning (compared to both American and Japanese law).

Such results suggest for example some globalised localism, whereby local phenomena (especially in core countries) continue to diffuse world-wide, partly countering localised globalism, represented by the ongoing expansion of transnational arbitration impacting on domestic practices and attitudes. More generally, the survey results highlights the important theoretical and practical implications of the lex mercatoria for individual countries like Japan.

Keywords: contract law, arbitration, comparative law, Japan, lex mercatoria