The Law Merchant is depicted today as a transnational system based on merchant practice operating outside the fabric of national law. It is conceived as cosmopolitan in nature, universal in application, expertly delivered, and independent of other regulatory systems.
This article critiques these qualities attributed to the historical as well as present-day Law Merchant. It disputes that it has evolved ‘spontaneously’ out of merchant practice; that it is uniform in nature; and that it transcends national law. It argues instead that the Law Merchant is often fragmentary in nature and subject to disparate national and transnational influences. It challenges, in particular, unitary conceptions of ‘autonomy’ ascribed to the Law Merchant, presenting a pluralistic conception of Law Merchant ‘autonomy’ instead. It illustrates these arguments in relation to the so-called Cyberspace Law Merchant and to transnational commercial arbitration.
Commercial Law | International Law | International Trade
Date of this Version
Leon E. Trakman Professor, "A Plural Account of the Transnational Law Merchant" (May 2012). University of New South Wales Faculty of Law Research Series 2012. Working Paper 19.