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The Lex Mercatoria in Theory and Practice$
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Orsolya Toth

Print publication date: 2017

Print ISBN-13: 9780199685721

Published to Oxford Scholarship Online: March 2017

DOI: 10.1093/acprof:oso/9780199685721.001.0001

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Framework for an Analytical Account—The ‘Autonomous’ Status of the Lex Mercatoria

Framework for an Analytical Account—The ‘Autonomous’ Status of the Lex Mercatoria

(p.84) 4 Framework for an Analytical Account—The ‘Autonomous’ Status of the Lex Mercatoria
The Lex Mercatoria in Theory and Practice

Orsolya Toth

Oxford University Press

This chapter examines the status of the lex mercatoria as autonomous law by discussing the concept of ‘a-national usage’. It is controversial whether the lex mercatoria is an autonomous legal system. The criteria of a ‘legal system’ are often determined arbitrarily and legal positivism ties law to the nation-state. The chapter argues that a paradigm-shift is needed to grasp ‘a-national law’. It selects Herbert Hart’s concept of law, who examines rules within a social group which enables the scrutiny of the international business community. Primary rules and secondary rules help the analysis of the factual existence and legal recognition of usages. Roy Goode’s discussion of trade usages facilitates our understanding of ‘a-national’ usage which need not be recognized by any domestic law, only by the arbitrator. Due to harmonization efforts under the UNCITRAL Model Law and the New York Convention, there are minimal restrictions on arbitrators in this respect.

Keywords:   legal system, legal positivism, paradigm-shift, Herbert Hart, Roy Goode, international business community, primary rules, secondary rules, UNCITRAL Model Law, New York Convention

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