scholarly journals La regulación de las relaciones mercantiles internacionales y el desarrollo del derecho del comercio internacional

2015 ◽  
Vol 48 (1) ◽  
pp. 49
Author(s):  
Javier San Juan Crucelaegui
Keyword(s):  
Law Merchant ◽  
Lex Mercatoria

Sumario: I. La insuficiencia del sistema conflictual para la regulación de las relaciones mercantiles internacionales. II. Del renacimiento de la lex mercatoria a la configuración del Derecho del comercio internacional (new law merchant). 1. El renacimiento de la lex mercatoria. 2. La configuración del Derecho del comercio internacional. III. La heterogeneidad formal de las normas integradoras del Derecho del comercio internacional y la diversidad de sus orígenes. 1. La aportación de los operadores del comercio internacional (lex mercatoria). A) La costumbre y los usos de comercio. B) Las recopilaciones y codificaciones de usos y prácticas. C) Los usos y prácticas observados por las partes en sus relaciones. D) Los contratos tipo. 2. El arbitraje internacional y el desarrollo del Derecho del comercio internacional. A) La progresiva decantación de principios generales reguladores de la contratación mercantil internacional. B) El arbitraje internacional y la autonomía del Derecho del comercio internacional. 3. La contribución de los Estados y organizaciones internacionales. A) Los Tratados y Convenciones. B) Las leyes modelo. C) Los principios generales para la regulación de la contratación comercial internacional. D) Las guías jurídicas. IV. El contenido del Derecho del comercio internacional. 1. Los caracteres del Derecho del comercio internacional y las normas que lo integran. A) La uniformidad reguladora pretendida: la exclusión del sistema conflictual. B) El carácter privado de las normas que integran el Derecho del comercio internacional: la exclusión de las normas de Derecho público reguladoras del tráfico económico. 2. La sistematización del Derecho del comercio internacional. V. Derecho internacional privado y Derecho del comercio internacional.

1. An introduction to commercial law

2017 ◽  
Author(s):  
MA Clarke ◽  
RJA Hooley ◽  
RJC Munday ◽  
LS Sealy ◽  
AM Tettenborn ◽  
...  
Keyword(s):  
Middle Ages ◽  
Historical Development ◽  
Public Law ◽  
First Century ◽  
Commercial Law ◽  
National Legislation ◽  
Law Merchant ◽  
Lex Mercatoria ◽  
The Impact

This chapter introduces the reader to commercial law. It first considers the nature of commercial law by focusing on the definitions offered by Roy Goode, Tony Weir, and G. Samuel. It then examines the function of commercial law and the historical development of commercial law, tracing its roots to the lex mercatoria (law merchant) of the Middle Ages. It also discusses various sources of commercial law such as contracts and national legislation, along with the role of equity in commercial law, public law in the commercial arena, the philosophy and concepts of commercial law, and the codification of commercial law. Finally, it assesses the challenges for commercial law in the twenty-first century and the impact of Brexit on English commercial law.

Law in Early America

2018 ◽  
Author(s):  
Sally Hadden
Keyword(s):  
Native American ◽  
Native Americans ◽  
18Th Century ◽  
Common Law ◽  
Geographic Area ◽  
Early America ◽  
Legal Traditions ◽  
Law Merchant ◽  
Lex Mercatoria ◽  
Many Sources

Law in early America came from many sources. To focus exclusively on the English common law excludes other vital sources including (but not limited to) civil law, canon law, lex mercatoria (the law merchant), and custom. Also, the number of sources increases the farther back in time one goes and the greater the geographic area under consideration. By the 18th century, common law had come to dominate, but not snuff out, other competing legal traditions, in part due to the numerical, political, military, and linguistic advantages of its users. English colonists were well-acquainted with the common law, but after arriving in the New World, the process of adaptation to new experiences and new surroundings meant that English common law would undergo numerous alterations. Colonists in early America had to create legal explanations for the dispossession of Native American land and the appropriation of labor by enslaved Native Americans and Africans. Their colonial charters provided that all colonial law must conform to English law, but deviations began to appear in several areas almost from the first moment of colonization. When controversies arose within the colonies, not all disagreements were settled in courts: churches and merchants provided alternative settings to arbitrate disputes. In part, other groups provided mediation because there were so few trained lawyers and judges available in 17th-century colonies. By the 18th century, however, the number of trained practitioners increased, and the sophistication of legal knowledge in the colonies grew. The majority of legal work handled by colonial lawyers concerned contracts and property. Law and the language of rights became more widely used by early Americans as the English attempted to tighten their control over the colonists in the mid-18th century. Rights and law became firmly linked with the Revolution in the minds of Americans, so much so that law, rights, and the American Revolution continue to form an integral part of American national identity.

Global Legal Pluralism and Commercial Law

2020 ◽  
pp. 688-745
Author(s):  
John Linarelli
Keyword(s):  
Middle Ages ◽  
Global Economy ◽  
Commercial Law ◽  
Global Finance ◽  
History Of ◽  
Significant Disagreement ◽  
The Subject ◽  
Law Merchant ◽  
Lex Mercatoria

Multiple, overlapping, and systemically interactive normative orders regulate commerce, trade, and finance. A diverse set of state and nonstate actors produce this plurality of rules governing markets. How these rules operate, what they are, whether some of them deserve recognition as what societies usually conceptualize as law, and their historical lineage are the subject of significant disagreement and confusion. This chapter offers a taxonomy and classification of the sources of norms and ground clearing on the different kinds of norms at work in the global economy. It surveys the literature on the history of the law merchant, with a focus on whether a medieval law merchant or lex mercatoria existed and if so in what form and content. It explains that while some legal scholars and jurists have offered visions of an “a-national” law merchant going back into at least the Middle Ages, historians are far more skeptical in their findings. The chapter also deals with the pluralism of legal orders governing commercial law in the nineteenth century, with the rise of the modern European nation-state. The chapter explores contemporary debates about the existence of a contemporary law merchant and a transnational commercial law. It goes on to examine the various schools of thought about pluralism in commercial law. The chapter covers how soft law dominates the regulation of global finance and banking. The chapter concludes by offering predictions of future domains for plural normative orders governing commerce and finance, in particular with the rise of digital technologies.

scholarly journals Lex Mercatoria: A Reflexive Law Guide To An Autonomous Legal System

2001 ◽  
Vol 2 (17) ◽  
Author(s):  
Gralf-Peter Calliess
Keyword(s):  
Legal System ◽  
Ongoing Debate ◽  
Promising Candidate ◽  
System Part ◽  
Law Merchant ◽  
Lex Mercatoria

In this presentation I shall start with a brief introduction into the concept of Reflexive Law (Part I), in order to examine what makes especially Reflexive Law a promising candidate for a fruitful contribution to the ongoing debate on the normative-legal or mere social-factual status of Lex Mercatoria (Part II), and finally coming up with the suggestion of some criteria or features, which we should draw special attention on in the process of the emergence of a New Law Merchant as an autonomous legal system (Part III).

The Ins and Outs of Transnational Private Regulatory Governance: Legitimacy, Accountability, Effectiveness and a New Concept of “Context”

2012 ◽  
Vol 13 (12) ◽  
pp. 1269-1281 ◽  
Author(s):  
Peer Zumbansen
Keyword(s):  
Self Regulation ◽  
Welfare States ◽  
Regulatory Governance ◽  
Transnational Law ◽  
Contractual Arrangements ◽  
Governance Challenges ◽  
The Status ◽  
Contractual Governance ◽  
Law Merchant ◽  
Lex Mercatoria

The continuing proliferation of transnational private regulatory governance challenges conceptions of legal authority, legitimacy and public regulation of economic activity. The pace at which these developments occur is set by a coalescence of multiple regime changes, predominantly in commercial law areas, but also in the field of internet governance, corporate law and labor law, where the rise to prominence of private actors has become a defining feature of the emerging transnational regulatory landscape. One of the most belabored fields, the transnational law merchant or, lex mercatoria, has gained the status of a poster child, as it represents a laboratory for the exploration of “private” contractual governance in a context, in which the assertion of public or private authority has itself become contentious. The ambiguity surrounding many forms of today's contractual governance in the transnational arena echoes that of the far-reaching transformation of public regulatory governance, which has been characteristic of Western welfare states over the last few decades. What is particularly remarkable, however, is the way in which the depictions of “private instruments” and “public interests” in the post-welfare state regulatory environment have given rise to a rise in importance of social norms, self-regulation and a general anti-state affect in the assessment of judicial enforcement or administration of contractual arrangements. A central challenge resulting from case studies such as the transnational law merchant is from which perspective we ought to adequately study and assess the justifications, which are being offered for a contractual governance model, which prioritizes and seeks to insulate “private” arrangements from their embeddedness in regulated market contexts, on both the national and transnational level.

Reflexive Transnational Law

2002 ◽  
Vol 23 (2) ◽  
Author(s):  
Graff-Peter Calliess
Keyword(s):  
Dispute Resolution ◽  
Legal System ◽  
Private Law ◽  
Domain Name ◽  
Commercial Arbitration ◽  
Transnational Law ◽  
Resolution System ◽  
Law Merchant ◽  
Lex Mercatoria ◽  
Self Reference

SummaryThe author examines the emergence of a transnational private law in alternative dispute resolution bodies and private norm formulating agencies from a reflexive law perspective. After introducing the concept of reflexive law he applies the idea of law as a communicative system to the ongoing debate on the existence of a New Law Merchant or lex mercatoria. He then discusses some features of international commercial arbitration (e.g. the lack of transparency) which hinder self-reference (autopoiesis) and thus the production of legal certainty in lex mercatoria as an autonomous legal system. He then contrasts these findings with the Domain Name Dispute Resolution System, which as opposed to Lex Mercatoria was rationally planned and highly formally organised by WIPO and ICANN, and which is allowing for self-reference and thus is designed as an autopoietic legal system, albeit with a very limited scope, i.e. the interference of abusive domain name registrations with trademarks (cybersquatting). From the comparison of both examples the author derives some preliminary ideas regarding a theory of reflexive transnational law, suggesting that the established general trend of privatisation of civil law need to be accompanied by a civilisation of private law, i.e. the constitutionalization of transnational private regimes by embedding them into a procedural constitution of freedom.

scholarly journals Kilka uwag o regulacji prawnej przedsiębiorczości w późnym średniowieczu

2018 ◽  
Vol 114 ◽  
pp. 675-691
Author(s):  
Rafał Wojciechowski
Keyword(s):  
Middle Ages ◽  
Legal Regulation ◽  
The Self ◽  
Roman Law ◽  
Bankruptcy Law ◽  
Commercial Law ◽  
Public Authorities ◽  
Late Middle Ages ◽  
Law Merchant ◽  
Lex Mercatoria

SOME REMARKS ON LEGAL REGULATION OF ENTREPRENEURSHIP IN THE LATE MIDDLE AGESThe author analyzes main issues of legal regulation of entrepreneurship in the late Middle Ages. At the beginning, the concepts of “law merchant” and “commercial law” were compared. The author then indicated the signifi cance of Roman law and its reception for the law used by entrepreneurs and presented the basic information about maritime law, borough rights and market jurisdiction. The issues of typology of commercial companies, development of banking and beginnings of the bankruptcy law were also studied. Finally, the author concluded that without a ruling factor, it was impossible to regulate entrepreneurship in the Middle Ages. The ideas about the self-regulating of merchant estate, autarkic lex mercatoria and exclusive trade courts are not completely false, but they are exaggerated. The participation of public authorities in the regulation of entrepreneurship has been irreplaceable.

scholarly journals Conceptualizing Lex Mercatoria: Malynes, Schmitthoff and Goldman compared

2020 ◽  
Vol 27 (4) ◽  
pp. 465-483
Author(s):  
Dave de Ruysscher
Keyword(s):  
International Business ◽  
The Other ◽  
Business Practices ◽  
New Approach ◽  
Or Practice ◽  
Law Merchant ◽  
Lex Mercatoria ◽  
The One ◽  
Ius Gentium ◽  
Do So

This article compares the doctrines on transnational commercial customs in Malynes’ Lex Mercatoria (1622) and in the writings of Clive M. Schmitthoff and Berthold Goldman. It is argued that core problems in conceptualizations of lex mercatoria are present in all these texts. Malynes unsuccessfully attempted to reconcile a new approach of considering law merchant as ius gentium on the one hand, with a tradition of particular customs of trade on the other. All three authors mentioned struggled when explaining how custom emerges from contracts or practice. Malynes, Schmitthoff and Goldman tried to apply existing notions (usage, custom) in order to do so, often referring to historical arguments, but they could not bridge the fundamental differences existing between customs of trade and ius gentium. As a result, all three authors failed in putting forward a workable theory of lex mercatoria. Non-matching legal views on international business practices were cut and pasted together, as it were, and new theories on lex mercatoria would do well not to replicate this approach.

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