Coursework - International Trade Law

Catherine WONG

Lex mercatoria or Principia Mercatoria

The lex mercatoria is a very ancient concept from at least the Middle Ages.

However, its status is still widely debated. Indeed, despite the numerous academic
comments, the definition of the lex mercatoria remains unsettle since each doctrine has its
own concept of the lex mercatoria. The positivist concept regards the lex mercatoria as a
body of rules which is ultimately founded on national law 1 and thus considers the lex
mercatoria at the most, as principia mercatoria2 but not as law. The present coursework aims
to study whether such conception of lex mercatoria is founded.
Following the positivist concept, if a rule or norm is claimed to be a law, then it must
fulfill three conditions: it must be normative, institutionalized and coercive3.
If the lex mercatoria satisfies more or less the normative character4 - in the sense that
its purpose is to serve as a guide to human behavior - it does not comply with the
characteristics of institutionalization and coerciveness. Indeed, the lex mercatoria isnt
enacted by a Parliament or officially approved by an international agreement. It does not in
principle have any binding force and the non-respect of the lex mercatoria is not punished.
The autonomist concept disagrees with this point of view by considering that the lex
mercatoria is a set of general principles, and customary rules spontaneously referred to or
elaborated in the framework of international trade, without reference to a particular national
system of law 5. In other words, the lex mercatoria is a legal order which Professor Goldman
defines as a body of specific rules [] [that] emerge[s] from the formation and the activity
of a specific social group 6. By specific social group , Professor Goldman is referring to a
societas mercatorum7. This group is constituted by a community of merchants capable of
producing legal rules and setting mechanisms of coercion such as black lists, damage to
commercial reputation or withdrawal from trade associations members rights8. This is the
1

Schmitthoff, C.M., Das neue Recht des Welthandels, RabelsZ 28, 1964, p. 223.

Highet, K., Lex Mercatoria and Arbitration, Thomas Carbonneau, (ed.), Rev. ed., 1998, Juris
Publishing, Kluwer Law international, p. 134
2

Raz, J., The Concept of a Legal system 2, 2d ed., 1980.

Mustill,M., The New Lex Mercatoria: The First Twenty-five years, Maarten Bos & Ian Brownlie
eds., 1987, at 152-153
4

Goldman, B., Contemporary Problems in International Commercial Arbitration, Julian D.M. Lew
(ed.), 1986, pp. 113-125, at 116
5

Goldman, B., Lex Mercatoria, Forum internationale No. 3, Nov. 1983, at 20-22

See id.

Berger, K.P., The creeping codification of the lex mercatoria, Kluwer Law international 1999, p.29

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Coursework - International Trade Law

Catherine WONG

theory called legal pluralism. Thus Professor Goldman considers that this societas
mercatorum gives the institutionalized and coerciveness nature to the lex mercatoria.
However according to the positivist concept, the societas mercatorum should not be qualified
as an institution since it doesnt have any sovereign authority. Professor Kassis highlighted
that the lex mercatoria does not have the same level of legitimacy as law since parties can
exclude the application of the lex mercatoria by expressly stipulating it in the contract9.
Moreover, if the UNIDROIT Principles, considered as the codification of lex mercatoria10, are
frequently referred by arbitrators, it is not the only source of guidance for the arbitrators.
Therefore, by being not institutionalized and thus by not having a sufficient degree of
legitimacy, the lex mercatoria lacks binding force that is a main feature of law. Therefore,
some authors challenge the status of lex mercatoria as law. Keith Highet has commented:
Just because the Lex mercatoria is theoretically available as a source for
interpretation or amplification of contractual clauses does not make it law.
It is, in my view, not a system of lex mercatoria but rather, at most, a set
of principia mercatoria11

In addition to its lack of binding force, the lex mercatoria has been criticized for not
providing a sufficiently substantial and solid system 12 to be considered as law. Indeed, it is
highlighted that arbitrators ruling is too specific to each case making hard to generalize it. In
other terms, there are too many trade usages to establish a homogeneous legal source13. The
lex mercatoria is also accused of being too incomplete as it doesnt deal with fundamental
legal issues such as validity, capacity or contract form. The general principles of the lex
mercatoria are so universal and essential that it is almost unnecessary to remind them.
Considering the normative characteristic, if the aim of the lex mercatoria is to serve as a
guide, the reality is that the it is too incomplete to serve as a proper guide.
Thus, even the lex mercatoria does have some features characteristic of law, it does
not have such status. It would be more accurate to consider it as principia mercatoria.
Although the lex mercatoria could not be properly considered as law, states are still open to
lex mercatoria. Indeed, according to Mathias Albert, due to its lack of legitimacy, states can

Kassis, A., Thorie Gnrale des Usages du Commerce, Librairie Gnrale de Droit et de
Jurisprudence, Paris, 1984, p. 165 et seq.
9

Gesa Baron, Do the UNIDROIT Principes of International Commercial Contracts Form a New Lex
Mercatoria? 15 ARB. INTL, 124-25 (1999)
10

11

Highet Keith, The Enigma of the Lex Mercatoria, 63 TUL. L. REV. 613, 616 (1989)

12

Mustill, M.J., Boyd, S.C., Commercial Arbitration 81, 2d ed. 1989

Goldman, B., Contempory Problems in International Commercial Arbitration, Julian D.M. Lew
(ed.), 1986
13

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Coursework - International Trade Law

Catherine WONG

officially recognize the lex mercatoria without fearing that the lex mercatoria will compete for
claims of sovereignty14.

Albert, M., Zur Politil der Weltgesellschaft: Identitt Recht im Kontext Internationaler
Vergesellschatftung, 2002
14

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