LEX MERCATORIAAS THE APPLICABLE LAW IN INTERNATIONAL COMMERCIAL CONTRACTS: CONTEMPORARY STATE AND PROSPECTS
Journal Title: Юридичний науковий електронний журнал - Year 2016, Vol 3, Issue
Abstract
This article envisages the concept of lex mercatoria, reasons of its renaissance in 1960s, its growing popularity every year, and the essence of this specific system of law. Lex mercatoria is widely accepted in international commercial arbitration, but state courts are very reluctant to use it as the law applicable to contractual obligations of the parties, as the law per se is believed to be created only by sovereigns while lex mercatoria is an amorphous system of rules that has a non-state origin. At the best state courts accept lex mercatoria as an additional source of law to the state law regulating the parties’ relations. On the other hand state courts recognize and enforce arbitral awards where lex mercatoria was the applicable law. So, states in the person of state courts partially recognize lex mercatoria. During the last decades scholars from all unification centers (Organisation of American States, European Union, Hague Conference on Private International Law, UNIDROIT, UNCITRAL, etc.) debated whether lex mercatoria should be equaled to state law and appropriate amendments to national legislation of states should be introduced. The majority of scholars believe lex mercatoria is an objective flexible and universal system of rules that favours international commerce as any other state law would do. The great part of the article is devoted to analysis of international documents regulating international commercial relations, where the question whether parties to a contract can opt for lex mercatoria as the applicable law to a contact is solved. The article envisages whether in the near future lex mercatoria could be treated by states equally as state law.
Authors and Affiliations
К. Г. Цірат
Keywords
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