Lex Mercatoria

Hans van Houtte

KU Leuven - Belgium
 Basic Questions
What is Law ?
What is a Legal System ?
Does law require sanctions ?

Ibi societas, ubi ius

 Lex Mercatoria ?
Applied in Arbitration
Content:
contract
customs and usages of international trade
international conventions
general principles of law
equity
 The Society of Business Men
Non Lawyers
Trade Usages and Customs

Lex Mercatoria
 Lex Mercatoria ?
Content:
contract
customs and usages of international trade
Standard conditions and contracts of trade
general principles of law
international conventions CISG
Equity fairness
 Courts vs. Arbitration
Courts
Rome Convention 1980 ?
Incorporation
Arbitration :
ICC Art. 178
The parties shal be free to agree upon the rules of
lawto be applied by the Arbitral Tribunal to the
merits of the dispute. In the absence of such
agreement, the Arbitral Tribunal shall apply the rules
of law which it determines to be appropriate.
 Arbitration Statutes
Uncitral Model Law Art. 28 :
The arbitral tribunal shall decide the dispute in accordance with
such rules of law as are chosen by the parties as applicable to the
substance of the dispute.
English Arbitration Act 1996 :
The arbitral tribunal shall decide the dispute
(a) in accordance with the law chosen by the parties as
applicable to the substance of the dispute, or
(b) if the parties so agree, in accordance with such other
considerations as are agreed by them or determined by the
tribunal.
 Contract
Contract in national law ?
ICC Arbitration Rules art. 17.2 :
In all cases the Arbitral Tribunal shall take account of
the provisions of the contract
 Custom and Trade usages
Custom and trade usage in national law ?
ICC Arbitration Rules art. 17.2 :
In all cases the Arbitral Tribunal shall take account of
the provisions of the contract
CISG Art. 9
 CISG Art. 9
Article 9
(1) The parties are bound by any usage to which they
have agreed and by any practices which they have
established between themselves.
(2) The parties are considered, unless otherwise agreed,
to have impliedly made applicable to their contract or
its formation a usage of which the parties knew or
ought to have known and which in international trade is
widely known to, and regularly observed by, parties to
contracts of the type involved in the particular trade
concerned.
 General Principles
UNIDROIT PRINCIPLES OF
INTERNATIONAL
COMMERCIAL CONTRACTS 2004
PREAMBLE
(Purpose of the Principles)
These Principles set forth general rules for international
commercial contracts.
They may be applied when the parties have agreed that
their contract be governed by general principles of law,
the lex mercatoria or the like.
 General Principles
Pacta sunt servanda Actori incumbit probatio
Rebus sic stantibus Force majeure
Performance in good Mitigation of damages
faith Foreseeability of
Not opposed behavior damages
may change contract Exceptio non adempleti
Effet utile contractus
Use creates presumption estoppel
of acceptance
 Equity ???
Equity in national law ?
Equity infra legem
Equity contra legem
 Lex Mercatoria = Equity ???
Specific agreement for
Amiable composition
Ex aequo et bono

Applicability lex mercatoria without agreement

 Transnational public policy ?

Not regional ( e.g. antitrust)

Truly transnational
Corruption ?
Human trafficking
Drugs
Arms traffic ???
Money laundering ???
Respect of IP ???