Lex Mercatoria
LEX MERCATORIA*
A. Three Concepts of Lex Mercatoria
Lex Mercatoria seems to mean different things to different people. The present authors suggest that the various notions may usefully be distinguished and grouped under three headings. First, the most ambitious concept of Lex Mercatoria is that of an autonomous legal order, created spontaneously by parties involved in international economic relations and existing independently of national legal orders. Second, Lex Mercatoria has been viewed as a body of rules sufficient to decide a dispute, operating as an alternative to an otherwise applicable national law. Third, it may be considered as a complement to otherwise applicable law, viewed as nothing more than the gradual consolidation of usage and settled expectations in international trade.
These concepts are sufficiently complex, and are so often encountered in commentary on International Chamber of Commerce (ICC) arbitration, that a description of their theoretical bases seems appropriate. In 1974, the ICC began to publish excerpts of awards, edited to preserve the anonymity of the parties, in the Journal du droit international. In the presentation of the initial small collection of awards, two ICC Court officials (Messrs Thompson and Derains) expressed a caveat. ICC arbitrators were not aware of awards rendered by other ICC arbitrators; since the ICC itself had neither the authority nor the wish to harmonize decisions of independent ICC arbitral tribunals, each award was rendered without regard to other awards. “One may thus hardly speak of an arbitral case law.”1
That was a quarter of a century ago. Since then, similar selections of ICC awards have been published in French each year in the last issue of the Journal du droit international; in English, the ICCA Yearbook of Commercial Arbitration has followed suit (beginning in 1976). Numerous other publications and books have helped create a substantial body of published ICC awards. The issues faced by ICC arbitrators also arise in non-ICC proceedings, and indeed the proliferation of published awards has extended to those rendered in such proceedings.
Concomitant with this development, ICC arbitrators have increasingly come to rely on previous awards to support their decisions. By 1981, in his introduction to the Journal du droit international digest of ICC awards, the then Secretary General of the ICC Court of Arbitration wrote that awards with increasing frequency referred to previous published awards.2 Such references may be found not only in cases where arbitrators have been given the authority to act as amiables compositeurs and thus without founding their decision in law,3 nor only in cases where the parties have stipulated by various formulations that general principles of law (rather than a specified national law) should apply,4 but indeed in cases where a specific national law is acknowledged in principle as being applicable.5 Given the fact that issues as to conflict of laws and the scope of arbitral jurisdiction often must be considered prior to the choice of the national law that may otherwise govern the contract, it is not surprising that ICC arbitrators’ reference to prior awards is especially frequent in dealing with such preliminary issues.6
It has become commonplace for advocates to invoke arbitral precedents in memorials and oral argument. Whether one is a believer (“lex mercatoria is being continually reinforced”)7 or not (“the myth of arbitral precedents as a source of international commercial law”),8 the trend cannot be ignored.
Reviewing the first edition of this book (ICC Arbitration was first published in 1984), the late eminent Swedish arbitration specialist Gillis Wetter suggested that we are witnessing the birth of something that should be called the international law of arbitration comprising both procedural and substantive elements and destined to grow in a manner similar to the common law in the United States, where “cases decided in a large number of jurisdictions, each of whose legal systems is sovereign, have come to create a common source of law which unites the various jurisdictions without disturbing their autonomy.”9 He wrote that the term lex mercatoria was inappropriate: at once too limited and overused.
While tempted to opt for a new expression and thus be free to define concepts afresh, upon reflection the present authors have not done so. Too much has been written about lex mercatoria in the context of ICC arbitration to skirt the subject. Yet Dr Wetter was quite right in saying that the expression is overburdened with meaning; the first task must be to understand the difference between the fundamentally disparate concepts behind the catch-phrase lex mercatoria. The discussion can be meaningful only if the terms are defined.
For all of its intellectual fascination, the debate over Lex Mercatoria to date10 does not appear to have had more than a marginal impact on the practice of international arbitration,11 and this is even more true of the attitudes and conduct of parties to international contracts. It may, however, be argued that participants in the process apply and create lex mercatoria without knowing it. The proponents of lex mercatoria certainly have important and legitimate objectives: to discern rules for international commerce that conform to parties’ expectations, and to avoid the trap created when the otherwise applicable national law appears uncertain, peculiar, dramatically amended since the date of the contract, or otherwise unpredictable and unjust in its application to foreigners. One problem is that the debate so far has involved only the members of a small group of specialists. Another is that when these specialists argue about lex mercatoria, they often are not talking about the same thing.
Proponents of lex mercatoria have the disconcerting habit of announcing the existence of an entire planet on little more evidence than blips on the radar screen, while detractors have adopted what one might call a posture of aggressive ignorance. The non-specialist, recoiling instantly from something which he recognizes as complicated and far removed from his everyday concerns, perhaps notes the catch-words for possible future reference, and goes on his way.
The discussion was revitalized in 1987 with the publication of a thoughtful and clear-eyed essay by Lord Mustill, “The new lex mercatoria.”12 It is a rare and fortunate contribution to the field: an effort of extensive research and analysis, examining the postulates and the evidence with a fresh mind. Moreover, it was undertaken by a jurist of the category most suitable to the task, but generally least likely to be in a position to carry it out: an experienced practitioner and magistrate at the height of professional life.
A principal merit of Mustill’s essay is its demonstration of the disparate concepts that have been blurred in much of the previous literature. While acknowledging their intellectual debt to this learned judge, the present authors seek to spread neither conviction nor doubt. They aim simply to shed light on what may be relevant to current practice. They suggest that lex mercatoria is invoked to cover three different concepts, two of which are ideals rather than current realities. As for the third, which in the authors’ view represents a useful evolution with a significant impact in practice, its contours are so modest that its very description may turn the tables: the theoreticians of lex mercatoria may deplore the banalization of their lofty constructs, while the scoffers might reflect that if this is all there is to it, they have been mercatorists all along.
An autonomous legal order
The average international practitioner may have great difficulty finding his way through the arcane abstractions found in the literature. The present authors believe that the significant practical distinction is the one to be perceived between the law of the arbitration, that is to say the law (or laws) which determines the binding effect of the actions of the parties or the arbitrator (in agreeing to arbitrate, in choosing rules of procedure or the applicable substantive law, in determining jurisdiction, or arbitrability in issuing an award) and the law under which the merits of the dispute are decided. The latter is foremost in the minds of the parties when addressing the arbitral tribunal, because it establishes the nature and extent of their obligations; the former comes into play when facing national judges, because it determines what effect is to be given to an agreement to arbitrate, or to an arbitral award. (There are also occasions when arbitrators consider the effect of national laws other than the one they deem applicable to the contract; for example in determining the capacity of a party or the effect of mandatory rules of the country where the contract is to be performed. If one takes the U.S. legal system as an example, there has been an unmistakable extension of the extra-contractual law arbitrators are expected to apply, from the validity of patents to the effect of antitrust laws.)
Given the fact that international business transactions by definition have connecting factors with more than one legal system, the distinction is at once natural and concrete.13
It is likely that every week an award is rendered in some Swiss city that applies a non-Swiss law, whether English, Brazilian, Iranian—or indeed lex mercatoria. But if that award is challenged before the Swiss judge, he will test it not under English, Brazilian or Iranian law, nor under lex mercatoria, but according to the criteria of Swiss law. Thus, with respect to an ICC award which by its terms purports to decide the dispute by applying lex mercatoria, the question might arise whether the courts of the place of arbitration consider the award to be unlawful. Such a case has not arisen in England; some commentators there have expressed doubts as to the validity of such an award,14 but those doubts were put to rest by Article 46(1)(b) of the Arbitration Act 1996, subject to the requirement that the parties so agree. The Supreme Court of Austria has faced this situation and upheld the award.15 As of 1985, the courts of Belgium would not even have jurisdiction to hear such a challenge if no litigants were Belgian.16 The point is that the relevant legal system for this purpose would be that of the United Kingdom, Austria or Belgium, respectively. Similarly, if an award is presented for enforcement in a country other than the one where it was rendered, it is the legal system of that country which determines the effects of the award.17
If an international treaty such as the New York Convention applies, it does so because it has been made part of the national law of the enforcement forum. (The English courts have in fact held that an ICC award rendered in Switzerland and applying no national law as such, but “internationally accepted principles of law governing contractual relations,” may be enforced.18)
By contrast, the first concept covered by the expression lex mercatoria is that of an autonomous legal order which creates rules independent of any national legal order, and which govern the relationships of parties involved in international trade. As Lord Justice Mustill demonstrates after asking the simple question, “From where does its normative power arise?” the theoretical and practical difficulties of this concept are daunting. There exists no obligatory World Court of International Commerce. Disputants under an international contract may be confronted with one or more national judges or arbitrators; depending on the terms of the contract and on relevant rules of jurisdiction. At what point is one to suppose that a contractual relationship has fled the dominion of a national system to fall under an anational or transnational one? Mustill puts his finger on the dilemma by using the illustration of an international arbitrator faced with a previous award which decided precisely the question of law at issue:
If the arbitrator’s function is simply that of an exponent, then the second arbitrator need do no more than pay appropriate respect to the reasons of his colleague, without being obliged to arrive at the same decision. If he thinks fit, he is at liberty to hold that his predecessor misunderstood the Lex Mercatoria. Again, at the other extreme, if the first arbitrator has exercised a creative function as a social engineer, his successor can fairly regard him as no more than a part of the self-regulating mechanism of the contract under which he acted, and can thus feel free to exercise the same function, in a different sense, under his own contract. But if the intermediate theory is correct, an award which enunciates a new rule thereby adds to the corpus; and since the lex is conceived to be a binding law, the subsequent arbitrator must apply it, whether he agrees with the conclusion or not.19
Perhaps the strongest objection to viewing lex mercatoria as a legal order is the fact that at present it is simply not sufficient to deal with all aspects of an international commercial dispute. For example, how is one to determine the bona fides of an act undertaken on behalf of a corporation? Lex mercatoria, understood as principles derived from shared expectations in the international community, may hold that the capacity of an entity is determined by the law under which it is constituted, but the fact is that there are no corporations created under Lex Mercatoria. In the same vein, Mustill writes:
[I]t must be noted that the Lex Mercatoria has not yet laid claim to the whole territory of potential disputes arising from international commerce. Thus: (i) there appears to be no instance in which the lex has been invoked in a case of pure delict (ii) the lex has rarely been applied where the issues are those of consent, fraud in the making of a contract, and so on (iii) the lex has not, as far as the present author is aware, ever been credited in the literature with a power to create rights in rem, valid as against third parties—for example, by way of a transfer of title of corporeal assets, or pledge, or the creation of a monopoly such as patent or copyright … once it is accepted that the lex may on occasion have to be applied to some aspects of a dispute, whereas national law is applied to others, the practical attractions seem less apparent.20
A comprehensive body of substantive rules
Hundreds of international arbitral awards have now been published, in whole or in part, either containing the whole record of the case or sanitized to protect the anonymity of the parties. As already noted, it is an everyday phenomenon in ICC arbitration that written memorials and pleaders refer to awards as precedents. The text of this book itself is replete with descriptions and citations of arbitral awards. Does this confirm lex mercatoria’s existence as a body of laws sufficient to serve as the governing law of an international contract?
The present authors believe in the importance of arbitral precedents, but as shall be seen, in a more limited sense (the third concept). As matters stand today, it is difficult to maintain that lex mercatoria can govern a contract. As Mustill writes:
The proponents of the Lex Mercatoria claim it to be the law of the international business community: which must mean the law unanimously adopted by all countries engaged upon international commerce. Such a claim would have been sustainable two centuries ago. But the international business community is now immeasurably enlarged. What principles of trade law, apart from those which are so general as to be useless, are common to the legal systems of the members of such a community? How could the arbitrators or the advocates who appear before them amass the necessary materials on the laws of, say, Brazil, China, Russia, Australia, Nigeria, and Iraq? How could any tribunal, however cosmopolitan and polyglot, hope to understand the nuances of the multifarious legal systems? In published awards the arbitrators occasionally make large claims about the universality of principles, but these are rarely if ever substantiated by citation of sources. Equally if not more important is the question: How could any adviser hope to predict what a tribunal not yet constituted might make of such a task in the future?21
Nor is Mustill satisfied with trade practice as a source of rules outside national law:
The simple repetition of contracts on the same terms is as consistent with the exercise of freedom of contract as with subordination to a system of binding norms; indeed, far more so, since if the parties to a commodity transaction do not wish to bind themselves to, say, the GAFTA Contract Form No. 100, there is no legal or other institution which can compel them to do so. Moreover, the repetition of transactions in the same form could at most create a group of norms peculiar to the individual trade, thereby creating a network of para-legal systems. This is quite inconsistent with the theoretical premises of the Lex Mercatoria, which is that it springs spontaneously from the structure of international commerce—which is quite plainly regarded as an indivisible whole.22
Whatever one’s views de lege ferenda, it would appear impossible to deny that Mustill’s objections are well taken as a matter of current reality.23 The present authors would add only these observations:
• At the time of the preparation of the United Nations Commission International Trade Law’s (UNCITRAL) Model Law on International Commercial Arbitration,24 there was much debate about what was to become Article 28(2), defining the law to be applied by the arbitrators when the parties have not stipulated applicable law. Proponents of lex mercatoria (second concept) wished the wording (following the example of recent arbitration laws in France and the Netherlands) to refer to “rules of law” rather than “the law” determined by applicable conflict rules. The purpose was to allow awards to be decided on the basis of lex mercatoria. This proposal was defeated.25
• Awards handed down on the foundation of lex mercatoria can doubtless be things of beauty, if rendered by profoundly knowledgeable scholars of comparative law. But if correct application of lex mercatoria requires arbitrators of such caliber, there simply will be a shortage of qualified arbitrators. In addition, is it not a fair assumption that the best awards from the viewpoint of the parties are rendered by persons experienced with the problem raised by the particular context and substance of the dispute (construction contracts, long-term supply agreements, charter parties, or insurance policies); and would it not be unfortunate if they would be disqualified or reluctant to accept appointment because they do not belong to the lex mercatoria cognoscenti?
• To those who would answer the last point by observing that one need not realistically fear a dearth of persons eager to act as international arbitrators, it must be responded that this fuels rather than allays one’s apprehensions. In the hands of the untutored, authority to apply lex mercatoria may be a recipe for amateurism and arbitrariness. In some cases it may serve as a fig leaf for the arbitrator’s private preferences, substituted for the parties’ shared contractual expectations. Nothing is easier than to proclaim common principles on the basis of limited and superficial personal knowledge. If enough awards are rendered by amateur mercatorists, there may well be pressure to reverse the international trend toward non-reviewability of arbitrators’ findings of law.
In 1994, UNIDROIT came to the rescue of lex mercatoria by publishing Principles of International Commercial Contracts which seek to provide uniform substantive rules, dealing not only with general matters but also highly technical ones.26
If parties, arbitrators, and courts come to refer to these Principles, however, it will not mean that they are embracing lex mercatoria as the accretion of a common law of international transactions, but by way of relying on what is in effect a fixed codification which itself contains lacunae and may—once accepted in various places—have some difficulty in evolving. The UNIDROIT Principles may thus turn out to be a competitor of lex mercatoria, not its savior. Or perhaps it will come to be accepted, at least partially, as a snapshot of lex mercatoria as of 1994.27
International trade usage
Finally, the expression lex mercatoria may cover the notion of international trade usages sufficiently established to warrant that parties to international contracts—whether generally or by category of contracts—be considered bound by them. This is the concept that the present authors deem to be practically significant today.28 They hold it to be important and useful, but recognize that this proposition may be so mundane that learned commentators would doubtless have found it unworthy of new schools of thought. Nor, apparently, would a skeptic like Mustill find in it the occasion to tax his wit and his pen, because he would accept it as the most natural thing in the world. In “The new lex mercatoria,” he gives the concept but a passing glance.29
Mustill points out that Article 7(1) of the Geneva Convention of 1961, Article 33(3) of the UNCITRAL Arbitration Rules, and Article 13(5) of the ICC Rules (Article 17(2) in the 1998 revision) require trade usages to be taken into account, and then says: “But the position would surely be just the same without them.”30 The justification for this assertion is, of course, to be found in national laws. The reader reflecting on his own national law will doubtless find support for the applicability of usages.31 Indeed, the UNCITRAL Model Law on International Commercial Arbitration, which, it should be recalled, is a recommendation for harmonization of national laws (and whose drafters, as seen, specifically declined to endorse the applicability, in the absence of agreement by the parties to that effect, of “rules of law” other than “the law”), firmly sets down, in Article 28(4):
In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.
Lex mercatoria