The logical question is what is happening? Yet, it was imperative to be selective about which national systems to consider. Lex Mercatoria in International Arbitration 5. The claimant was a licensor France and the respondent, a licensee U. In this case the claimant wanted the contract it had with two respondents to be declared invalid. Gergen proposes a theory based on efficiency.

Among the contributors who are against the Lex Mercatoria: Stoufflet, Jean – L’oeuvre normative de la Chambre de commerce internationale lexmercatoria le domiaine bancaire, in: In the case of continuing obligations, the right to terminate takes the place of the right to withdraw. A further analysis is to be found in the pertinent chapters of this thesis. The expansion of transnational activity put intense pressure on states to recognize and adapt to the special needs of long-distance trade.

La lex mercatoria constitue-t-elle un ordre juridique efficace ?

This occurs when the parties agree upon them as governing their contract. This was due to the definitive instauration of absolutism by the Emperor Diocletian A. A general principle that contracts should prima facie be enforced according lexmercatria their terms: Please enter the dossertation. After the emergence of European legal science in the twelfth to fourteenth centuries they were: Whereas these doctrines deal with the relationship, they do not provide an answer to the question of whether lex mercatoria could be substantive law.


An example of their application in domestic courts is seen in the case of the Kiev Commercial Court. The second stage is concerned with the discernment of differences and similarities between the systems under comparative analysis.

dissertation la place de la lexmercatoria

PDF accessed on August 14, Current Case Law on Arbitration Issues: Journal of Laa Law J. This applies to arbitral tribunals as well, as there is some risk that an award based on lex mercatoria rather than on substantive law might be set aside, or not enforced in the domestic courts.


II, Contrat, 3rd ed.

dissertation la place de la lexmercatoria

Dispute Settlement,at 59 et seq. Unfortunately, there is no general agreement on the definition of lex mercatoria. National and international law have an essential role in aspects uncovered by the lex, for example, the capacity of the parties.

Whatever the theory on the lex mercatoria, it is understood that general principles of law and general usages of international trade are the main pillars of it. For example, in previous years the prevailing view in England was that English arbitrators must apply English conflict of law rules to find the law applicable to the merits of the dispute, and that they could not apply any substantive law other than that of a fixed and recognisable system.

If a jury decides that you ought reasonably to have been satisfied, the court will hold that you have broken our contract even if you were honestly not satisfied. Furthermore, it is postulated that good faith and fairness have permeated the dissdrtation law of the United States beyond specific cases enshrined in provisions of these regulations. According to Schmitthoff, it is the rediscovery of the international character of 9 Clive M.

Here, there is a judgement from dissertatlon Corte Suprema di Cassazione which sets forth that the violation of duties of protection, information and cooperation arising from the duty of correctness legitimates the plaintiff to propose the exception of non-performance of the contract.

My deepest gratitude is to my friend Tom McCarthy for his heartfelt aid with the language and his encouragement during all these years.



Lando Commission see in regard to the latter: Thus, an objective criterion can be applied. It is a tool of the arbitrator or judge to be used in a discretional way. See also Lowenfeld n 58 Schmitthoff, International Business Law: It will be proposed that good faith cooperation responds to the needs of global commerce; therefore, the ed of a change of meaning is associated ds a change in the way to trade internationally.

Modern Law Review Mich. Cambridge University Press D: Courts used the doctrine of consideration to invalidate such contracts on the grounds that a party who binds himself to sell or buy as much as he pleases does not really bind himself.

dissertation la place de la lexmercatoria

During the post-classical era good faith assumed substantive meaning, i. Conversely, Carbonneau maintains that states have legitimised the procedure of arbitration, its autonomy and, by strengthening its results, enforce them; therefore the content of arbitral awards can have precedent value.

Here, Berman and Kaufman note: There were no general ledmercatoria, but particular solutions and, since the principle could not find an a dissertagion determination, the judicial way was essential for translating the concept into applicable law.