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The TransLex-Principles are a systematic online-collection of principles and rules of transnational commercial law, the New Lex Mercatoria. They are being used by counsel and arbitrators in international arbitrations as well as contract drafters, academics and participants of moot court competitions in international arbitration across the globe.
I. The Lex Mercatoria Concept
1. The Medieval Law Merchant
The concept of the Lex Mercatoria has a long history. The ancient Lex Mercatoria was the Law Merchant of the Middle Ages. It has been argued that "the dimension and commmendable significance of the medieval mercantile community lies in the creation of its own law out of its own needs and its own views"1. Traces of this medieval Lex Mercatoria are reflected in early collections of maritime law principles such as the Rôles d'Olérons of the early thirteenth century, or the Catalan Book of the Consulate of the Sea ("Libre del Consolat del Mar") of the late fifteenth century. The medieval Lex Mercatoria was first described by an anonymous author in the late thirteenth century as part of "Colford's Collection" in the "Little Red Book of Bristol". In line with the almost exclusive emphasis on process and procedure in late thirteenth century English legal thinking, that treatise was not concerned with the search for substantive norms and values for mercantile transactions, but focussed exclusively on the question as to how one could improve and expedite the procedure in mercantile courts. The problem with this purely process-oriented approach was that only a small fraction of disputes went before those courts and the question whether principles and rules for all cross-border mercantile transactions of those days existed, remained unanswered. Other authors such as the merchant Gerard Malynes in his famous treatise "Consuetudo Vel Lex Mercatoria" published in 1622 and the diplomat, lawyer, judge and pioneer in the scientific treatment of commercial law, Johannes Marquardus in his book "Tractatus politico-juridicus de iure mercatorum et commerciorum" published in 16622 focussed more on the elaboration of ordinary principles and rules found in mercantile transactions and ways to formalize them by drawing on civilian learning. The last publication of the pre-nation state age bearing the name "Lex Mercatoria" in its title was Wyndham Beawes' "Lex Mercatoria or A Complete Code of Commercial Law" of 1813.
The main features of the medieval Lex Mercatoria as an independent body of legal rules were, a) that it did not originate from any particular legislator or rule-maker, and b) that it consisted of a more or less coherent system of principles and rules of procedural and substantive law. That system resulted from and took account of the "nature of things" (Natur der Sache), i.e. the specific needs and risks of medieval inter-city and cross-border trade as well as the habits and practices and legal principles - with respect to both substance and procedure - prevailing in the ports, market-places, boroughs, fairs and special mercantile courts of those days.
The ancient Lex Mercatoria disappeared during the nineteenth century. At that time, the idea of the nation state and issues of state-sovereignty that came along with it began to prevail over the concept of an independent "trans-national" commercial law.3. Consequently, the principles and rules of the medieval Lex Mercatoria were incorporated in the major European codifications of commercial law like the French Code de Commerce or the German Handelsgesetzbuch.
2. The New Lex Mercatoria in the Age of Globalization
The Lex Mercatoria was rediscovered in the 1960s by Berthold Goldman, Clive Schmitthoff and others. This development has its roots in legal structures which emerged in the world economy before World War I, particularly through the standardization of contract clauses4, particularly for sales and (maritime) transport contracts. Goldman and Schmitthoff worked almost simultaneously on the revival of the idea of the medieval law merchant in Dijon and London respectively. However, they had different conceptions of the scope and legal quality of the transnationalisation of commercial law, especially with respect to the extent to which it is independent from domestic law. Goldman regarded the New Lex Mercatoria as a third, autonomous legal system besides domestic laws and public international law. For Schmitthoff, transnational law existed only within the confines of the principle of party autonomy which, for him, was a principle of domestic law. In spite of these differences in detail, they shared the common conviction that a transnational body of legal principles and rules is gradually emerging from the spontaneous activities (usages, practices, use of model contracts and contract clauses etc.) of the international business community (Goldman) and the multiple activities of international formulating agencies in the harmonization and unification of international trade law (Schmitthoff)5.
Today, transnational commercial law provides a vital means to meet the challenges of globalization6. Various phenomena contribute to the gradual evolution of a system of "a-national", i.e. transnational legal principles and rules: the increasing mobility of people, capital, commodities, information and communication across national frontiers and the resulting increased economic interconnectedness of states and regions across the globe, the erosion of traditional boundaries between national and international law, public and private law and politics and law, the decreasing significance of the sovereign state as "top-down" lawmaker7 for international business transactions, the corresponding increase of the significance of private "bottom-up" rulemaking ("private governance") by non-governmental formulating agencies such as the International Chamber of Commerce (ICC) and international businessmen themselves, the continuing use by these businessmen of standard forms and more or less identical or at least similar contract clauses (e.g. on "force majeure"), which are intended to cope with the specific risks involved in their cross-border transactions, and the global standardization and unification processes that result from these phenomena8. The specificity of these transnational principles and rules is their responsiveness to the legitimate market needs and practices arising out of the cross-border activities of businessmen across the globe.
A catalyst for this development is the decision-making practice of international arbitral tribunals. Both Goldman9 and Schmitthoff10 have acknowledged their significance for the evolution of transnational commercial law. In fact, international arbitrators have become the natural judges of international commerce. The success of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and of the UNCITRAL Model Law on International Commercial Arbitration reveals that today, international arbitral tribunals are accepted as "private courts" with a standing - firmly acknowledged by domestic courts, lawmakers and international formulating agencies alike - that equals that of domestic judges. Unlike these judges, however, international arbitrators frequently take a comparative approach to the decision of disputes arising out of international commercial transactions and very often refer to transnational rules or general principles of law, be it to decide the case before them, be it to invest their decision, which is based on domestic law, with increased comparative persuasiveness vis-à-vis the parties to the dispute.
Apart from these practical issues, legal pluralism11 has provided the theoretical underpinnings for these developments, which evolve out of the realities of modern society and contemporary cross-border business and commerce. Unlike the traditional positivistic, highly formalistic and state-centered theory of legal sources, the proponents of legal pluralism accept that the theory of legal sources must take account of these developments. They acknowledge that the formation of the law is not an exclusive governmental (domestic law) or inter-state (international law) prerogative and that legal theory must not be trapped within the traditional 2x2 matrix created by the dualities of "public/private" and "domestic/international". Instead, and contrary to the traditional legal paradigm which focusses almost exclusively on the state, legal pluralism regards the multi-facetted ways of private rulemaking through the international business community, including the contract itself, as potential sources of law. For the pluralists, the new Lex Mercatoria is not disqualified as law, merely because it is not national12.
While these transnational legal structures are being used today in international contract and arbitration practice to an increasing extent, there are still a number of obstacles in the way towards a greater acceptance of the New Lex Mercatoria. Some of these obstacles relate to legal theory and methodology, others to the practical work with this relatively new system of transnational law. With respect to the latter, a worldwide enquiry about the use of transnational law in international practice conducted by the Center for Transnational Law (CENTRAL) between 1998 and 2000 has revealed that the lack of knowledge about the contents of the New Lex Mercatoria is a major stumbling block on the way towards an increased acceptance of this concept13.
II. The TransLex-Principles
The TransLex-Principles improve this situation significantly. For more than 130 principles and rules of transnational law, such as "pacta sunt servanda", "venire contra factum proprium", "duty to mitigate damages", "duty to pay interest", or "compensation for expropriation", the TransLex-Principles provide the user with both, their black letter text and comprehensive comparative references taken from international arbitral awards, domestic statutes and court decisions, international conventions, soft law instruments including international restatements of contract law, standard contract forms and contract clauses taken from international one-off contracts, trade practices and usages, and academic sources. All of these references are, as far as possible, reproduced in full text versions. For each principle or rule, a Commentary explains how they can be applied in practice and how they are connected with other TransLex-Principles. This latter function of the TransLex-Commentaries is particularly important, because it reveals that and how the New Lex Mercatoria is gradually developing into a genuine system of law.
The TransLex-Principles may be used for many purposes, for example as a means:
2. The Concept of the "Creeping Codification"
The TransLex-Principles are based on the concept of the "Creeping Codification"16 of transnational law: a non-exhaustive, open list of principles and rules of the lex mercatoria that is constantly updated but never completed. This list-concept has met with approval in international legal practice:
"...it is evident that the idea of 'the list'...is as close as we've come, in recent generations, to tackling the lex and wrestling it into usable shape"17.
Any attempt towards formal "codification" of the lex mercatoria may appear paradoxical, given the high degree of informality and flexibility of international business out of which these principles and rules emerge as "law in action":
"...the new transnational lex mercatoria is likely to be of a dynamic nature, often expressed in practices that may change overnight if business logic or market forces so require. The search is therefore on for a forward-moving set of internationalized, uniform principles and rules that may be largely articulated by participants themselves and draws widely from their practical needs, established ways of dealing, best practices, trade organization rules, and from the innate rationality of their international dealings"18.
However, in the context of transnational law, "codification" does not and cannot mean formalized lawmaking by a sovereign legislature as in the traditional, positivistic model of top-down sovereign rulemaking. In transnational business, a single legislature or rule maker does not exist. Rather, the notion of codification relates to the formulation of these principles and rules in black letter texts and the reproduction of the comparative law materials evidencing a particular principle or rule. This approach to the codification of transnational law serves three specific purposes:
The TransLex-Principles therefore merely establish a presumption that the principles and rules reproduced in the list form part of the lex mercatoria. With this approach, the TransLex-Principles stand in the tradition of the Digests of common law published in the first half of the 20th century. What was stated by Edward Jenks in the Preface of his "A Digest of English Civil Law" of 1921 applies with equal justification to the TransLex-Principles:
"A Digest differs from a Code, mainly in that it professes merely to state the rules which are covered by existing authority. It claims - at least, when it is the work of purely private authors - no other respect than that which is derived from a belief that it represents an honest, intelligent, and industrious attempt to reduce the chaos of existing materials to simplicity and order.
The chief intellectual effort demanded of the authors of the work has been to extract, by appropriate treatment, from this formless heap of statutes and judicial decisions, the rules which such authorities enunciate and expound, and to arrange those rules in the most convenient and accessible form."20
In the modern world, the idea of the persuasive force of a compilation of legal principles, definitions and rules, derived from comparative research, has been adopted by a number of influential working groups operating at a global or regional level. The "UNIDROIT Principles of International Commercial Contracts (UPICC)" and the "Lando Principles on European Contract Law (PECL)" are the most prominent results of these efforts. More recently, this approach was adopted by the Study Group on a European Civil Code and the Research Group on Existing EC Private Law ("Acquis Group").21
The Common Frame of Reference (CFR) drafted by the Group has been characterized as a "non-legislative codification of European private law" and as a "codification-like system of legal norms with immediate application".22 This terminology is ultimate proof of the fact that today, the notion of "codification" has acquired a new meaning, which goes well beyond the traditional view of legislation by the nation-state, and extends to modern instruments of private governance. Their value - or persuasive authority - as a means to "codify" the law depends solely on the acceptance of those who use them:
"...the abstract authority of a text giving expression to a legal norm consists in the legal profession accepting it as an ultimate source of the law, without requiring further legal reasons to do so...
More specifically, the relative authority of a legal text consists in its formal weight in legal argument, where different legal authorities are present and may be in conflict with each other. In such a case, decisions must be made, usually independently of the content of the individual norms in question, as to which of those texts should be taken as the ultimate foundation of legal argument. These decisions depend on, and are an expression of, the texts' authority. Indeed, it would be wrong to assume that the legal authority would be a kind of mysterious quality of a text. Rather, authority is assigned to legal texts by those working with them, i.e. by professional lawyers applying and interpreting such texts in the course of legal argument."23
This broader notion of the term "codification" has now also found its way into the decision-making of international arbitral tribunals:
"...the issues in dispute between the parties should primarily be based not on the law of any particular jurisdiction, but on such rules of law that have found their way into international codifications...that enjoy a widespread recognition...The UNIDROIT rules [offer] a protection for contracting parties that adequately reflects the basic principles of commercial relations..."24
All those involved in the TransLex-Project at the Center for Transnational Law sincerely hope that the TransLex-Principles will serve their purpose as a unique online-tool to spread the knowledge about the concept of transnational law around the globe and to bridge the gap between theory and practice by making the New Lex Mercatoria useable in everyday contract and arbitration practice.
1) Levin Goldschmidt, Handbuch des Handelsrechts, 3rd ed. Vol. 1 (Universalgeschichte des Handelsrechts), 1891, at 142 (translation from German); see also Trakman, The Law Merchant: The Evolution of Commercial Law, 1983, at 9; but see for a profound critique of that view Sachs, The 'Law Merchant' and the Fair Court of St. Ives 1270-1324, at 2 et seq.
2) Marquardus, Tractatus politico-juridicus de jure mercatorum et commerciorum singulari: in quo ex jure divino, publico & privato, communi, civili, canonico, feudali, & Saxonico nec non variorum juris interpretum commentariis ac consiliis ... ut & philosophorum & historicum classicorum axiomatibus, exemplis atque monitis politicis jura commerciorum singularia IV libris secundùm tria juris objecta summatim collecta, exposita & illustrata sunt, Frankfurt 1662.
3) See Blackstone, Commentaries on the Laws of England, Vol. I, 15th ed, 1809, at 75, note 8 (note added to the original work by the editor of the posthum edition, Edward Christian; click here for the 1775 edition without that footnote): "...the expression ['lex mercatoria'] has frequently led merchants to suppose, that all their new fashions and devices immediately become the law of the land; a notion which, perhaps, has been too much encouraged by the courts. Merchants ought to take their law from the courts, and not the courts from the merchants; and when the law is found inconvenient for the purposes of extended commerce, application ought to be made to parliament for redress”; see also Schmitthoff, in: Schmitthoff (ed.), The Sources of the Law of International Trade, 1964, at 37: “When we compare the modern law of international trade … with the medieval lex mercatoria, we notice that the modern development has one great drawback....: the drawback is that the modern law of international trade has to overcome the barriers created by the relatively modern concept of the national state which originated a legal order of numerous municipal systems....”.
4) See, e.g. Großmann-Doerth, Der Jurist und das autonome Recht des Welthandels, JW 1929, p. 3447 et seq; Rabel, Das Recht des Warenkaufs I, 1936; Raiser, Das Recht der Allgemeinen Geschäftsbedingungen, 1935, at 63, asking the question whether contracting parties, by using standard terms, may "regulate their dealings without intermediation by a domestic legal system, thereby setting law among themselves"; but see id, at 76 where he vigorously rejects such ideas and argues that accepting private orders created by standard terms as a source of law would mean "an inadmissable commingling of legal sociology and legal dogmatics" (translation from German) because it is always a rule of domestic law which leads to the binding character of such orders but such orders may not become binding in and of themselves, i.e. without acknowledgement by a domestic legal system; see for a similar contemporary view von Bar/Mankowski, Internationales Privatrecht I, 2nd ed. 2003, § 3 No. 76: "Domestic law always has the last word; what it does not authorize has...no chance of validity."
5) For a discussion of Goldman's and Schmitthoff's accounts see Toth, The Lex Mercatoria in Theory and Practice, OUP 2014 (forthcoming).
6) See Dalhuisen, Globalisation and the Transnationalisation of Commercial and Financial Law, Rutgers L. J. 2013, at 20: "Rather (but also no more than asa model), legal transnationalisation might best be seen as concerning law formation in a different legal order than that of states, which are only one type of legal order, with the special feature that it is territorially confined. Especially to the extent globalisation is becoming an autonomous process, the emergence of a separate new legal order presents itself at least in business. That is the transnational commercial and financial legal order and the modern lex mercatoria with its different legal sources is then the private law of that order."
7) See Hobbes, Leviathan, 1651, at 137: "[I]t is manifest, that law in generall, is not Counsell, but Command; nor a Command of any man to any man; but only of him, whose Command is addressed to one formerly obliged to obey him."
8) Berger, Rechtliche Rahmenbedingungen der Globalisierung - vom Wettbewerb der Rechtsordnungen zu "Private Governance", in: Bierbaum (ed.), So investiert die Welt, 2007, at 33 et seq.; Jansen, Nils/Michaels, Ralf, Private Law and the State, Comparative Perceptions and Historical Observations, RabelsZ 71 (2007), at 345 et seq.; Michaels, Ralf/Jansen, Nils, Private Law beyond the State? Europeanization, Globalization, Privatization, 54 Am. J. Comp. L. (2006), at 843, 868 et seq.; Köndgen, Privatisierung des Rechts - Private Governance zwischen Deregulierung und Rekonstitutionalisierung, AcP 206 (2006), at 477 et seq.; Caruso, Private Law and State-Making in the Age of Globalization, 38 N.Y.U.J.Int'l.L.& Pol., 1 et seq. (2006); see generally Creveld, The Rise and Decline of the State, 1999, at 336 et seq.
9) See Goldman, Frontières du droit et “lex mercatoria”, Archives de philosophie du droit 1964, p. 181,183: “Charged with the decision of disputes of international commerce, the arbitrators…when they refer to specific norms having their roots in the contract …. (model contracts, codified usages,..) cannot always limit themselves with that reference: a background of general principles is often indispensible for them, even if they do not always refer to it explicitly. Experience shows that often they do not search [for a solution] in a domestic legal system or an international convention, but in a ‘customary law’ of international trade – lex mercatoria – of which it is useless to determine whether they discover or develop it, because both approaches are intimately intertwined, as in any case in which a judge performs such an activity” (translation from French).
10) Schmitthoff, International Trade Usages, 1987, No. 71: "Substantive law is often born in the womb of procedure. In keeping with their international character, the law which these international arbitral bodies create is transnational. It is the new lex mercatoria".
11) See generally Merry, Legal Pluralism, Law Society Rev. 1988, at 869 et seq.; Griffiths, What is Legal Pluralism?, Journal of Legal Pluralism 1986, at 1 et seq.; Teubner, Globale Bukowina: Zur Emergenz eines transnationalen Rechtspluralismus, Rechtshistorisches Journal 1996, at 255 et seq.; Maurer, Lex Maritima, 2012, at 85 et seq.; see also Allen, Law in the Making, 7th ed 1964, p. 64: "...the study of the sources of law cannot be approached with the preconception that they are derived from a single origin"; see from the perspective of legal realism Wendell Holmes, The Common Law, 43rd ed. 1949: "The life of the law has not been logic; it has been experience".
12) For a discussion of the role of legal pluralism in the Lex Mercatoria context and the importance of "recognition" of the Lex Mercatoria Toth, The Lex Mercatoria in Theory and Practice, OUP 2014 (forthcoming).
13) See the statement of an international practitioner, reprinted at Berger (ed.), The Practice of Transnational Law, 2001, at 111: "Negotiating with another party by invoking these principles [of transnational commercial law] requires that the other party is as well assisted by somebody who is aware of these principles and knows how to handle them. This is not always the case".
14) See Kronke, Unif.L.Rev. 2000, at 13, 18: "Some of the road ahead [of mitigating the effects of the specific and fragmentary character of international conventions] may be covered by 'creeping' unification ...".
15) See Lando, in Scandinavian Studies in Law 2000, at 343, 401.
16) See Berger, The Creeping Codification of the Lex Mercatoria, 2nd ed 2010, at 250 et seq.
17) Fortier, Arbitration International 2001, at 121, 127 (= ICSID Rev.-FILJ 2001, at 10, 18); see also Molineaux, J.Int'l.Arb. No. 1, 2000, at 147, 150: "...the list looks forward and provides an incentive for the future evolution of transnational commercial law as an open legal system ... There can be no doubt that this is a list which will become a sine qua non reference..."; Pryles, Mealey's Int'l.Arb.Rep., February 2003, at 21, 25 et seq.; see for the case law of the Iran-US Claims Tribunal Brunetti, Arbitration International 2002, at 355 et seq. surveying the Tribunal's jurisprudence relating to selected rules of the TLDB.
18) Dalhuisen, Legal Orders and their Manifestation: The Operation of the International Commercial and Financial Order and Its Lex Mercatoria, Berkeley J.Int'l.L. 2006, at 129, 133; see also Berger, in: Hartkamp/Hesselink/Hondius et al. (eds.), Towards a European Civil Code, 3rd ed. 2004, at 43, 53 et seq.; Herber, Internationales Handelsrecht (IHR) 2003, at 1, 5; Wasserstein Fassberg, Chicago Journal of International Law 2004, at 67, 82: "This push towards formalised codification...requires lex mercatoria theorists to relax the qualifications for membership and compromise its autonomy in a way which ultimately belies the standard justification offered for its existence - the more formal and explicit the rules, the less organic, the less spontaneous, the less authentic they are".
19) See the Statement of the Sole Arbitrator in ICC Award No. 5953, Clunet 1990, at 1056, 1059: "As far as the general principles of international business are concerned, their list cannot be found in a single textbook" (translation from French).
20) See Jenks (ed.), A Digest of English Civil Law, London 1921, at iii et seq.; see also Broom, A Selection of Legel Maxims, 10th ed. 1939, at v: "If, then, it be true that a knowledge of first principles is at least as essential in Law as in other sciences, certainly in none is a knowledge of those principles, unaccompanied by a sufficient investigation of their bearing and practical application, more likely to lead into grievous error." For a recent digest containing 1,000 principles on transnational law see Domingo/Ortega/Rogríguez-Antolin/Zambrana, Principios de Derecho Global, 2nd ed. 2006, at 31 et seq.
21) In the introduction to the "Draft Common Frame of Reference" (DCFR), which was published in early 2008, the drafters state: "The drafters of the DCFR nurture the hope that it will be seen...as a text from which inspiration can be gained for suitable solutions for private law questions...If the content of the DFCR convinces, it may contribute to a harmonious and informal Europeanisation of private law", see von Bar/Clive/Schulte-Nölke et al (eds.), Principles, Definitions and Model Rules of Eurpean Private Law, Draft Common Frame of Reference (DCFR), Interim Outline Edition, 2008, at 7 et seq.; see also Schulze, in: Schulze (ed.), The Common Frame of Reference and Existing EC Contract Law, 2008, at 3 et seq.
22) Jansen/Zimmermann, Was ist und wozu der DCFR?, NJW 2009, 3401, 3406 (emphasis added).
23) Jansen, The Making of Legal Authority, 2010, at 43 et seq., concluding that "non-legislative reference texts may gain similar or even greater authority than legislative codifications" and complaining that so far "legal scholars [in analysing factors determining "legal authority" of such texts] have mostly focused on factors of pure legal rationality", id. at 138 and 141.
24) SCC Award No. 117/1999, http://www.unilex.info/case.cfm?pid=2&do=case&ID=793.