The Lex Mercatoria in Theory and Practice


Author: Orsolya Toth
Publisher: OUP Oxford
ISBN: 9780199685721
Category: Law
Page: 320
View: 1735

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This new book provides the most thorough analysis of the 'law merchant' analysing and clarifying current thinking and including a formula to recognise and apply a rule of the lex mercatoria in practice.

The Applicable Law to International Commercial Contracts and the Status of Lex Mercatoria - With a Special Emphasis on Choice of Law Rules in the European Community


Author: Mert Elcin
Publisher: Universal-Publishers
ISBN: 1599423030
Category: Law
Page: 90
View: 1826

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International commercial contracts in the context of increasing globalization of the national markets have posed some of the most difficult questions of the legal theory as developed since the emergence of nation states; those are, whether it is possible or desirable to allow international commercial contracts to be governed by the law merchant or, in its medieval name, lex mercatoria, a body of rules which has not been derived from the will of sovereign states, but mainly from transnational trade usages and practices, and to what extent those rules should govern transnational transactions. The traditional approach of legal positivism to the questions maintains that law governing contracts containing a foreign element should be a national law which will be determined according to choice of law rules. However, the particularities of cross border trade yield unsatisfactory results when the rules essentially designed for the settlement of domestic disputes or national laws pertaining to international economic relations, but developed under the influence of a certain legal tradition, are tried to be applied. New solutions are needed to overcome the special problems of international trade between merchants from different legal systems. In that regard, while the international commercial arbitration which has been freed from the constraints of the domestic laws is an important step, the courts generally applying the principle of party autonomy which allows parties to designate the law that will apply to their transactions have proved insufficient due to the positivistic influence on the conflict of laws rules of most countries which has limited parties' choice of law to the national substantive laws. The problems created by those inconsistencies and divergences have been felt more strongly in the European Community which constitutes an internal market by integrating the national markets of Member States into a single one. The present paper is an attempt to search for answers to those questions with a special emphasis on the situation in the European Community on the basis of the idea that law as a servant of social need must take account of the far reaching and dramatic socio-economic changes.

Theory and Practice of Harmonisation


Author: Mads Andenas,Camilla Baasch Andersen
Publisher: Edward Elgar Publishing
ISBN: 0857933175
Category: Law
Page: 640
View: 8098

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Harmonised and uniform international laws are now being spread across different jurisdictions and fields of law, bringing with them an increasing body of scholarship on practical problems and theoretical dimensions. This comprehensive and insightful book focuses on the contributions to the development and understanding of the critical theory of harmonisation. The contributing authors address a variety of different subjects concerned with harmonisation and the application of legal rules resulting from harmonisation efforts. This study is written by leading scholars engaged in different aspects of harmonisation, and covers both regional harmonisation within the EU and regional human rights treaties, as well as harmonisation with international treaty obligations. With comparative analysis that contributes to the development of a more general theory on the harmonisation process, this timely book will appeal to EU and international law scholars and practitioners, as well as those looking to future legal harmonisation in other regions in Asia, Latin America and Africa.

The Creeping Codification of the New Lex Mercatoria


Author: Klaus Peter Berger
Publisher: Kluwer Law International B.V.
ISBN: 9041131795
Category: Law
Page: 422
View: 9824

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Advanced notion of the Creeping Codification which is based on the 'TransLex Principles', operated by the Center for Transnational Law (CENTRAL) of Cologne University at www.trans-lex.org. The Trans- Lex Principles are based on the 'List of Principles, Rules and Standards of the Lex Mercatoria' which was reproduced in the Annex of the first edition of this book. This Internet-based codification method realized through the TransLex Principles corresponds to the unique character of the Creeping Codification of the New Lex Mercatoria which is an ongoing, spontaneous, and dynamic process which is never completed.

International Business Law and Lex Mercatoria


Author: Filip De Ly
Publisher: Emerald Group Publishing
ISBN: 9780444889713
Category: Law
Page: 361
View: 8743

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Traditionally, legal problems arising in connection with international business transactions had to be solved by a national law. This view was challenged in post war scholarly writing and transnational practice. It was argued that transnational rules (such as transnational contracts, general conditions, trade usages, general principles, uniform rules, arbitral cases) should be applied instead. Often, these transnational rules are referred to as lex mercatoria. This volume analyzes the different legal approaches to international business problems (including the theory of lex mercatoria) as well as their implications for international practice. As such, the relevance and importance of substantive law and conflict of laws and of national, international and transnational rules are discussed both with regard to their application by national courts and by international commercial arbitrators.

Normative Pluralism and International Law

Exploring Global Governance
Author: Jan Klabbers,Touko Piiparinen
Publisher: Cambridge University Press
ISBN: 1107245168
Category: Law
Page: N.A
View: 2199

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This book addresses conflicts involving different normative orders: what happens when international law prohibits behavior, but the same behavior is nonetheless morally justified or warranted? Can the actor concerned ignore international law under appeal to morality? Can soldiers escape legal liability by pointing to honor? Can accountants do so under reference to professional standards? How, in other words, does law relate to other normative orders? The assumption behind this book is that law no longer automatically claims supremacy, but that actors can pick and choose which code to follow. The novelty resides not so much in identifying conflicts, but in exploring if, when and how different orders can be used intentionally. In doing so, the book covers conflicts between legal orders and conflicts involving law and honor, self-regulation, lex mercatoria, local social practices, bureaucracy, religion, professional standards and morality.

Legal Interpretation in International Commercial Arbitration


Author: Dr Joanna Jemielniak
Publisher: Ashgate Publishing, Ltd.
ISBN: 1409474828
Category: Law
Page: 258
View: 2138

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This book fills a gap in legal academic study and practice in International Commercial Arbitration (ICA) by offering an in-depth analysis on legal discourse and interpretation. Written by a specialist in international business law, arbitration and legal theory, it examines the discursive framework of arbitral proceedings, through an exploration of the unique status of arbitration as a legal and semiotic phenomenon. Historical and contemporary aspects of legal discourse and interpretation are considered, as well as developments in the field of discourse analysis in ICA. A section is devoted to institutional and structural determinants of legal discourse in ICA in which ad hoc and institutional forms are examined. The book also deals with functional aspects of legal interpretation in arbitral discourse, focusing on interpretative standards, methods and considerations in decision-making in ICA. The comparative examinations of existing legal framework and case law reflect the international nature of the subject and the book will be of value to both academic and professional readers.

The Creeping Codification of the New Lex Mercatoria


Author: Klaus Peter Berger
Publisher: Kluwer Law International B.V.
ISBN: 9041131795
Category: Law
Page: 422
View: 3170

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Advanced notion of the Creeping Codification which is based on the 'TransLex Principles', operated by the Center for Transnational Law (CENTRAL) of Cologne University at www.trans-lex.org. The Trans- Lex Principles are based on the 'List of Principles, Rules and Standards of the Lex Mercatoria' which was reproduced in the Annex of the first edition of this book. This Internet-based codification method realized through the TransLex Principles corresponds to the unique character of the Creeping Codification of the New Lex Mercatoria which is an ongoing, spontaneous, and dynamic process which is never completed.

Corruption in International Trade and Commercial Arbitration


Author: Abdulhay Sayed
Publisher: Kluwer Law International B.V.
ISBN: 9041122362
Category: Law
Page: 482
View: 9271

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Descreve como a corrupção é julgada na arbitragem comercial internacional. Procura explicar porque não há uma uniformidade na política arbitral em relação à corrupção. Analisa casos relativos à corrupção e arbitragem. Examina a legislação sobre corrupção, assim como convenções internacionais relevantes.

International Arbitration and Global Governance

Contending Theories and Evidence
Author: Walter Mattli,Thomas Dietz
Publisher: Oxford University Press, USA
ISBN: 0198716729
Category: Political Science
Page: 250
View: 310

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This work reflects analytically on international arbitration as a form of global governance. It thus contributes to a rapidly growing literature that describes the profound economic, legal, and political transformation in which key governance functions are increasingly exercised by a new constellation that include actors other than national public authorities.

Contracting with Sovereignty

State Contracts and International Arbitration
Author: Ivar Alvik
Publisher: Bloomsbury Publishing
ISBN: 1847316220
Category: Law
Page: 346
View: 4352

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The application of international law to state contracts with foreign private companies was the cause of continuing controversy throughout much of the twentieth century. State contractual undertakings with foreign investors raise a number of legal issues that do not fit well into the traditional pattern of international law as a law between states, but which also cannot be satisfactorily resolved by the exclusive application of the municipal law of the contracting state. In recent years the controversy has gained new prominence as a result of the advent of a new form of international dispute settlement, namely the mechanism of investment treaty arbitration. The main feature of this model of dispute resolution is that foreign investors are entitled to bring claims against states directly before international arbitral tribunals. This model, which emerged strongly in the late 1990s, has generated a rapidly expanding body of arbitral case law and in the process become one of the most significant new developments in modern international law. Many of the disputes subject to investment treaty arbitration have their origin in contractual commitments made by states toward foreign investors. At the same time international commercial arbitration continues to be the preferred means of dispute resolution in contracts between foreign investors and states or state entities. This book explores how contract claims against states are dealt with in the two parallel processes of treaty-based and contract-based arbitration. The book charts the development of commercial arbitration into an international legal remedy in this field, discusses the theoretical problems which it creates for international law, and outlines the most significant substantive features of the international law applicable to contract claims as developed by arbitral tribunals on the basis of treaty standards and customary law.

Arbitration in Complex International Contracts


Author: Joachim Frick
Publisher: Kluwer Law International B.V.
ISBN: 9041116621
Category: Law
Page: 320
View: 7784

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The technical, economic, and social development of the last one hundred years has created a new type of long-term contract which one may call `Complex International Contract'. Typical examples include complex civil engineering and constructions contracts as well as joint venture, shareholders, project finance, franchising, cooperation and management agreements. The dispute resolution mechanism, which normally deals with such contracts, is commercial arbitration, which has been deeply affected in recent decades by attempts to improve its capabilities. Most importantly, there is the trend towards further denationalization of arbitration with respect to the applicable substantive law. In this regard, a new generation of conflict rules no longer imposes on the arbitrators a particular method to be applied for the purpose of determining the applicable rules of law. Moreover, arbitration more frequently took on the task of adapting Complex International Contracts to changed circumstances. Also, special rules have been developed for so-called multi-party arbitration and fast track arbitration facilitating efficient dispute resolution. The author describes these trends both from a practical as well as a theoretical perspective, evaluating not only the advantages, but also the risks involved with the new developments in arbitration. Relevant issues with respect to the drafting and renegotiation of such contracts are also discussed.

Droit International Privé À la Fin Du XXe Siècle


Author: Symeon Symeonides
Publisher: N.A
ISBN: 9789041112347
Category: Law
Page: 494
View: 1964

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This book provides a comparative assessment of the current state of private international law by exploring the fundamental philosophical, ideological, and methodological challenges encountered during the 20th century and the responses to those challenges in the western world. Among the questions discussed are: the dilemma between `conflicts justice' and `material justice'; the conflict between the goal of international uniformity and the need or desire to protect state or national interests; the tension between the goals of certainty and flexibility; the symbiosis of the multilateral, unilateral, and substantive methodologies; and the antagonism or co-existence between choice-of-law rules and flexible `approaches', and between `jurisdiction-selecting' and `content-oriented' rules or approaches. Written by some of the world's most distinguished scholars, this thought-provoking book provides insightful and diverse perspectives from nineteen countries. It is essential reading for any teacher or student of private international law or comparative law.

Contract Governance

Dimensions in Law and Interdisciplinary Research
Author: Stefan Grundmann,Florian Möslein,Karl Riesenhuber
Publisher: OUP Oxford
ISBN: 0191035297
Category: Law
Page: 496
View: 7955

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This book introduces and develops Contract Governance as a new approach to contract theory. While the concept of governance has already been developed in Williamson's seminal article, it has, ironically, not received much attention in general contract law theory. Indeed, Contract Governance appears to be an important and necessary complement to corporate governance and in fact, as the second, equally important pillar of governance research in the core of private law. With this in mind, Grundmann, Möslein, and Riesenhuber provide a novel approach in setting an international and interdisciplinary research agenda for developing contract law scholarship. Contract Governance focuses particularly on the ways in which a governance perspective leads to research questions that have been neglected in traditional contract law scholarship, and how, from a governance perspective, the questions are dealt with in a different manner and style. Combining substantive chapters and commentaries, this collection of essays addresses an array of topics, including: third party impact and contract governance problems in herd behaviour; governance of networks of contracts; governance in long-term contractual relationships; contract governance and rule setting; and contract governance and political dimensions.

Rough Consensus and Running Code

A Theory of Transnational Private Law
Author: Gralf-Peter Calliess,Peer Zumbansen
Publisher: Bloomsbury Publishing
ISBN: 1847315828
Category: Law
Page: 382
View: 4669

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Private law has long been the focus of efforts to explain wider developments of law in an era of globalisation. As consumer transactions and corporate activities continue to develop with scant regard to legal and national boundaries, private law theorists have begun to sketch and conceptualise the possible architecture of a transnational legal theory. Drawing a detailed map of the mixed regulatory landscape of 'hard' and 'soft' laws, official, unofficial, direct and indirect modes of regulation, rules, recommendations and principles as well as exploring the concept of governance through disclosure and transparency, this book develops a theoretical framework of transnational legal regulation. Rough Consensus and Running Code describes and analyses different law-making regimes currently observable in the transnational arena. Its core aim is to reassess the transnational regulation of consumer contracts and corporate governance in light of a dramatic proliferation of rule-creators and compliance mechanisms that can no longer be clearly associated with either the 'state' or the 'market'. The chosen examples from two of the most dynamic legal fields in the transnational arena today serve as backdrops for a comprehensive legal theoretical inquiry into the changing institutional and normative landscape of legal norm-creation.

The Law-dictionary

Explaining the Rise, Progress, and Present State, of the English Law, in Theory and Practice; Defining and Interpreting the Terms Or Words of Art; and Comprising Copious Information, Historical, Political, and Commercial, on the Subjects of Our Law, Trade, and Government
Author: Sir Thomas Edlyne Tomlins
Publisher: N.A
ISBN: N.A
Category: Law
Page: N.A
View: 794

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