II, at 93 et seq. In continental European kingdoms the law of Justinian was ius commune, applicable everywhere in the absence of special regional sources of law. This theory will be verified through an analysis of: The Cambridge Medieval History Vol. The first general principle may also be subject to the concept of abus de droit, and to a rule that unfair and unconscionable contracts and clauses should not be enforced; Cf. Numerous factors have influenced this dynamism:

An illustration of this is the ICC award n. But this evidence also highlights that businesses are not averse to the idea of an optional instrument as such and would appreciate the possibility to choose a neutral contract law regime. Law evolves over years. It will be seen in Chapter Four of this thesis that states, on purpose or not, recognize this advantage of the lex and, for that reason, they recall the UNIDROIT Principles as a model for their own unification of law process. Universalist Lex Mercatoria v. An arbitral clause designated Geneva as the place of arbitration and stated the law of the Canton of Geneva as applicable to procedural matters.

Story, Joseph – Commentaries on the Conflict of Laws, 8th ed. Chapter One is introductory and helps to understand the lineaments of this study. On 23 January the claimant and the second respondent entered into a construction contract containing a clause stating that the rights arising out of the contract could not be part of an assignment agreement.

Further to it, Article 38 of the Statute of the According to this principle the interpretation of clauses must be orientated to give them an effect rather than make them fail.


However, it still found its way into legislation as customary law. The appellate court did not concur with this ruling and remitted the case to the regional court. This is the fundamental question of this project.

dissertation la place de la lexmercatoria

For their work they used a method of study unknown to the Romans themselves, insisting that contradictions in the legal material were only apparent. Farnsworth n French View all editions and formats Summary: They tried to harmonize the sources in the conviction that for every legal question only one binding rule exists.

It did allow the arbitrators to apply the rules of lexmfrcatoria it considered most appropriate. This applies to arbitral tribunals as well, as there is some risk that an award based on lex mercatoria rather than on substantive law might be set aside, or not enforced in the domestic courts.

You may have already requested this item. For further information see the status available at: The thrust of lw thesis represents an investigation of the reasons for sissertation essential role of good faith in universal contexts, and in particular, its meaning in the lex mercatoria.

One argument is based on the assumption that the domain of Lex Mercatoria consists of customary law.

Institutionalization of Lex Mercatoria: the key to a predictable legal framework

pace Czech Republic Alexander J. A Handelsbrauch could also lead to an implicit arbitration agreement, as is typical for this business branch and the participating parties took actions in the relevant business branch.

Disssertation Mercatoria in Domestic Courts 5. Besides the descriptive approach, a normative perspective is also assumed, as this study will not remain neutral on the existence and advantages of the lex mercatoria. Among them, Maniruzzaman considers that the lex mercatoria does not reach those standards of domestic 52 Besides, some national statutes have acknowledged the application of the lex mercatoria by arbitrators: As of today only 21 parties have amended it.


Another example is section 23 Sale under Voidable Title: Your request to send this item has been completed.

That is now considered a decisive factor in the origin and development of the iurisdictio of the peregrine praetor15 and in the configuration of the ius gentium. It may be that the answer lies in the expectations of the parties when contracting.

dissertation la place de la lexmercatoria

Therefore, the lex mercatoria has gained ground in international trade. What is the meaning of good faith in the lex mercatoria? Common Understanding between Businesspersons consensus mercatoria 5. As regards the choice of law rules binding on the English Courts, see the following cases: Would you also like to submit a review for this item?


Request a SEO Analysis. This occurs when the parties agree upon them as governing their contract. Steven Burton unveils a gap in the literature and in judicial decisions given from the time of the introduction of the UCC.