“. The new transnational lex mercatoria is likely to be dynamic in nature, often expressed in practices that can change overnight if commercial logic or market forces so require. The search for a forward-looking set of internationalized and unified principles and rules is therefore under way, which can be broadly articulated by the participants themselves and draw heavily on their practical needs, established modes of action, best practices, rules of trade organization and the innate rationality of their international affairs. 72 (29) Anon. v. Sheriff of London, King`s Council (Star Chamber), Exchequer Chamber 1473, Pasch 13, Edw. 4, Plea 5, Y.B. 13 Edw. 2, fol. 9, Pasch, pl. 5 (Ch. 1473); Basile/Bestor/Coquillette, Lex mercatoria and Legal Pluralism: A Late Thirteenth-Century Treatise and Its Afterlife, 1998, 128 ff.; see also Hall, introduction, in Hall (ed.) Selden Society, Selected Cases Concerning The Law Merchant, vol.
II, Central Courts, 1930, IX, XIII: “In the [seventeenth] century the chancellor proposed to the king`s council in the starry chamber that merchants, especially foreigners, who visit his kingdom under the king`s protection should not be bound by the law of the land (which they may not know), but may be a party to legal proceedings before the Chancellery or before the King and the Council in Parliament. The Chancellor also noted that for this reason, the lawyer (it is the law of nations, it is the law of nature) has been admitted into the proceedings of our courts for the benefit of those who come and go with their property. (Footnote omitted). The main objective of this analysis is to clarify the content of the term lex mercatoria and its evolution and to briefly describe the general attitude of the courts (as law enforcement agencies) towards this concept. It is important to know the history and reason for the creation of the lex mercatoria, its subsequent codification and its place in the legal world. In addition, it is important to analyse the purpose of the International Court of Arbitration, which today plays an important role in the application of commercial law, and finally to discover the importance of commercial law today. “. The expression [`lex mercatoria`] has often led merchants to believe that all their new fashions and means immediately become the law of the land; An idea that has perhaps been promoted too much by the courts. Traders should take their rights from the courts and not from the merchants` courts; and if the law is found to be inconvenient for the purposes of extended trade, redress should be sought from Parliament.”38 (58) Michaels, Legal Medievalism in Lex Mercatoria Scholarship, Texas Law Review 2012, 259, 264 and 265; See also id, 267: “It may seem obvious that such an imaginary Middle Ages and such an imaginary lex mercatoria must be rejected because of their ideological potential. I am not entirely convinced. It should be noted that legal positivism rests as much on mythical foundations as on the ideal of the state on which so much contemporary legal thought rests.
The problem, it seems to me, is not to dream in itself. The problem begins. as soon as these dreams are taken as a reason and as direct models for our current problems”; see also Trakman, The Law Merchant: The Evolution of Commercial Law 1983, p. 17, which highlights the potential usefulness of the historic Lex Mercatoria as a “model of innovation”. The lex mercatoria was then considered part of international law, while the norms were superior to national legislation. Modern commercial law differs from codification law, but is similar to what prevailed before. Sir John Holt (Chief Justice 1689-1710) and Lord Mansfield (Chief Justice, 1756-1788) were the principal proponents of the incorporation of the lex mercatoria into the common law. Holt did not complete the task, perhaps out of conservatism (see Clerke v Martin[7] [full citation needed]) and it was Lord Mansfield who became known as the “founder of the commercial law of this country” (Britain). [8] [Non-primary source required] While sitting in Guildhall, Lord Mansfield, The modern lex mercatoria is “the principal law created by the international market and its participants itself, supported where necessary by treaty law (such as the Vienna Convention on Contracts for the International Sale of Goods), and in practice formed and functioning in a manner similar to international law with its various sources. as can be seen, in particular, in its foreign investment law. (Dalhuisen, 2012) 80) Schmitthoff, International Trade Usages, 1987, No. 71: “Substantive law is often born in the process. In accordance with their international character, the law created by these international arbitration bodies is transnational.
This is the new lex mercatoria.” 31The lex mercatoria was also discussed by the diplomat, jurist, judge and pioneer of the scientific treatment of commercial law, Johannes Marquardus, in his book 166234 Tractatus politico-juridicus de iure mercatorum et commerciorum. It focused more on developing specific principles and rules found in business transactions and ways to formalize them through the use of civic learning. The term lex mercatoria comes from Latin and means “commercial right”. This term was used in the Middle Ages by merchants in Europe to designate commercial law. The lex mercatoria is sometimes used in international disputes between commercial companies. Most of the time, these disputes are settled by arbitrators, who are sometimes (expressly or implicitly) authorized to apply the principles of lex mercatoria. [11] [best source needed] In the 12th and 13th centuries. In the nineteenth century, special courts were established in France, Italy and England in the regions where markets were held to resolve commercial disputes and apply the lex mercatoria. (Rozehnalová, 1994, p.198).
These arbitrations were conducted by the most respected people in the ranks of merchants to ensure that each case was understood and judged primarily according to known customs and traditions, so that the lex mercatoria was applied in a given territory.
