Beschreibung:
The book offers a theoretically justified and pragmatic concept of the so-called 'lex mercatoria' contributing to the debate concerning the existence of this law as an autonomous, a-national and universal legal system established by trade practice.
This new work equips commercial arbitrators and counsel with a formula to 'recognize' and apply a rule of the lex mercatoria in practice. It argues that a rule of the lex mercatoria is established if there is a majority congruent behaviour within a business community followed out of fear of criticism and a willingness to criticize others in case of deviation. This two-element test increases legal certainty and potentially reduces the time and costs of proving the rule.
Case studies are included to illustrate the practical implications of the analysis and more difficult issues such as burden of proof, admissible evidence and the role of written harmonization measures are also considered. The approach adopted in the book reduces the elusiveness of the concept and offers an analysis which makes the lex mercatoria clearer for scholars and more attractive for practitioners.
This new book provides the most thorough analysis of the 'law merchant' analysing and clarifying current thinking and including a formula to recognise and apply a rule of the lex mercatoria in practice.
- Introduction
- 1: Lex Mercatoria - The Debate as it Currently Stands
- 2: The Existing Accounts of the Lex Mercatoria
- 3: Framework for an Analytical Account - Clarifying Terminology
- 4: Framework for an Analytical Account - The 'Autonomous' Status of the Lex Mercatoria
- 5: A Rule of the Lex Mercatoria - Opening the Debate to Public International Law
- 6: A Rule of the Lex Mercatoria - Opening the Debate to Jurisprudence
- 7: The Lex Mercatoria as a Legal System
- 8: Conflicts Recognition of the Lex Mercatoria: The Status Quo
- 9: Conflicts Recognition of the Lex Mercatoria: The Proposed Model
- 10: Substantive Recognition of the Lex Mercatoria
- Conclusion
This new book provides the most thorough analysis of the 'law merchant' analysing and clarifying current thinking and including a formula to recognise and apply a rule of the lex mercatoria in practice.