Russian Legal Discourse

Due to the nonrecognition of the origin of the business law in the commercial law, or, the law merchant, grown out of the customs and usages of merchants that existed before the emergence of law itself, and which, even in the process of formalizing the law into the legislation, characteristic for the continental law, in respect of commercial activities that introduced its public regulation, has reserved its self-regulatory and dispositive nature, the Russian legal discourse is quite different to what is generally represented as the Western legal discourse. Although Russian business law has been developed under the influence of Western law, the idea of the legislatively established legal surveillance of business activities, where written law is regarded as a progressive means of regulation, plays still an important role, and the breach of the law requirements is a sine qua non condition for civil liability (for damages) in Russia. Keywords: Law, Legal Discourse; Legislation; Praxis, Regulation

II General Law and Negotiable Instruments: A Brief Historical Perspective

This chapter explores the evolution of negotiable instruments as a cross-border migration of ideas, challenges of innovation and progress, and sophistication of legal doctrines, principles, and concepts. There are common themes to the evolution of the various negotiable instruments in different eras in diverse places. They point to a common denominator in issues and solutions, rather than to the existence of ‘foreign’ or ‘imported’ legal principles and concepts into each legal system to shape the law of these instruments. First, needs of commerce and available technology, rather than interests of rulers and states, have continuously shaped this evolution in each era and locality and under each legal system. Second, each of the three instruments—the bill, cheque, and note—evolved on its own, within its own domestic legal system. There has not been a universal ‘law merchant’ under which governing principles evolved and moved from one system to another. Third, autonomy of parties has been an underlying factor in each legal system in facilitating the development of obligations under each instrument and the law applicable. General principles of contract and property have been the building materials in the construction of this law. Fourth, in the development of the instruments and the law governing them, the emergence of ‘negotiability’, and its evolution into a unifying factor in a body of law governing them, is quite late.

Global Legal Pluralism and Commercial Law

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.

Conceptualizing Lex Mercatoria: Malynes, Schmitthoff and Goldman compared

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.

The Conservation in Lyon and the Long Tradition of Coutume and Usage

In this contribution I am tracing the legal history of the concepts coutume and usage back from today’s international mercantile law to the Tribunal de la Conservation in early modern Lyon. From the late 19th century some theorists were regarding usage as normative when it could be derived from the consensus between contracting parties. We find this conception of usage, for example, in the CISG. On the other hand, the more romantical strain of theorists on the law merchant was stressing that customary law was normative regardless of the possibility to derive it from the parties’ agreements. In early modern Lyon merchants were invoking usages (and to a lesser extent also coutumes) at the Conservation frequently. Because of the juridification of this tribunal in the late 17th century, we expected that the use of the words coutume and usage was in line with the doctrinal conceptions of their days (according to which coutume was a form of written normative customary law and usage was a non-written normative customary law). This, however, was not always the case: sometimes the judges of the Conservation were using the words in a rather loose sense.

The Law of Commerce and Trade

This chapter discusses the history of American commercial law covering the admiralty and general commerce, sale of goods, bankruptcy and insolvency, and contract. American commercial law was deeply and persistently in debt to England. Theoretically, even national sovereignty was no barrier. The laws of admiralty, marine insurance, commercial paper, and sale of goods were not, supposedly, parochial law, English law; they were part of an international body of rules. The law of sales of goods developed greatly in the first half of the nineteenth century. Many, if not most, of the leading cases were English and were adopted in the United States fairly rapidly. Two strains of law—contract and the law merchant—each with a somewhat different emphasis, were more or less godparents of the law of sales.

Law in Early America

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.

Kilka uwag o regulacji prawnej przedsiębiorczości w późnym średniowieczu

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.