Lex MercatoriaLex Mercatoria

Hans van HoutteHans van Houtte

KU Leuven - BelgiumKU Leuven - Belgium

Basic QuestionsBasic Questions

• What is Law ?What is Law ?• What is a Legal System ?What is a Legal System ?• Does law require sanctions ?Does law require sanctions ?

• Ibi societas, ubi iusIbi societas, ubi ius

Lex Mercatoria ?Lex Mercatoria ?

• Applied in ArbitrationApplied in Arbitration• Content:Content:

– contractcontract– customs and usages of international customs and usages of international

trade international conventionstrade international conventions– general principles of lawgeneral principles of law– equityequity

The Society of Business The Society of Business MenMen

• Non LawyersNon Lawyers• Trade Usages and CustomsTrade Usages and Customs

• Lex MercatoriaLex Mercatoria

Lex Mercatoria ?Lex Mercatoria ?

• Content:Content:– contractcontract– customs and usages of international customs and usages of international

tradetrade– Standard conditions and contracts of Standard conditions and contracts of

tradetrade– general principles of lawgeneral principles of law– international conventions – CISG international conventions – CISG – Equity – fairness Equity – fairness

Courts vs. ArbitrationCourts vs. Arbitration

• Courts Courts – Rome Convention 1980 ?Rome Convention 1980 ?– IncorporationIncorporation

• Arbitration :Arbitration :ICC Art. 178 ICC Art. 178 The parties shal be free to agree upon the The parties shal be free to agree upon the

rules of lawto be applied by the Arbitral rules of lawto be applied by the Arbitral Tribunal to the merits of the dispute. In the Tribunal to the merits of the dispute. In the absence of such agreement, the Arbitral absence of such agreement, the Arbitral Tribunal shall apply the rules of law which Tribunal shall apply the rules of law which it determines to be appropriate.” it determines to be appropriate.”

Arbitration StatutesArbitration Statutes

• Uncitral Model Law Art. 28 :Uncitral Model Law Art. 28 :The arbitral tribunal shall decide the dispute in The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by accordance with such rules of law as are chosen by the parties as applicable to the substance of the the parties as applicable to the substance of the dispute.dispute.

• English Arbitration Act 1996English Arbitration Act 1996 : : The arbitral tribunal shall decide the dispute— The arbitral tribunal shall decide the dispute— (a) in accordance with the law chosen by the parties (a) in accordance with the law chosen by the parties

as applicable to the substance of the dispute, or as applicable to the substance of the dispute, or (b) if the parties so agree, in accordance with such (b) if the parties so agree, in accordance with such

other considerations as are agreed by them or other considerations as are agreed by them or determined by the tribunal.determined by the tribunal.

ContractContract

• Contract in national law ?Contract in national law ?• ICC Arbitration Rules – art. 17.2 :ICC Arbitration Rules – art. 17.2 :

In all cases the Arbitral Tribunal In all cases the Arbitral Tribunal shall take account of the provisions shall take account of the provisions of the contract …”of the contract …”

Custom and Trade Custom and Trade usagesusages

• Custom and trade usage in national Custom and trade usage in national law ?law ?

• ICC Arbitration Rules – art. 17.2 :ICC Arbitration Rules – art. 17.2 :

In all cases the Arbitral Tribunal In all cases the Arbitral Tribunal shall take account of the provisions shall take account of the provisions of the contract …”of the contract …”

• CISG Art. 9CISG Art. 9

CISG Art. 9CISG Art. 9

• Article 9Article 9• (1) The parties are bound by any usage to which (1) The parties are bound by any usage to which

they have agreed and by any practices which they have agreed and by any practices which they have established between themselves. they have established between themselves.

• (2) The parties are considered, unless otherwise (2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to agreed, to have impliedly made applicable to their contract or its formation a usage of which their contract or its formation a usage of which the parties knew or ought to have known and the parties knew or ought to have known and which in international trade is widely known to, which in international trade is widely known to, and regularly observed by, parties to contracts and regularly observed by, parties to contracts of the type involved in the particular trade of the type involved in the particular trade concerned. concerned.

General PrinciplesGeneral Principles

• UNIDROIT PRINCIPLES OF UNIDROIT PRINCIPLES OF INTERNATIONALINTERNATIONAL

• COMMERCIAL CONTRACTS 2004COMMERCIAL CONTRACTS 2004• PREAMBLEPREAMBLE• (Purpose of the Principles)(Purpose of the Principles)• These Principles set forth general rules for These Principles set forth general rules for

international commercial contracts.international commercial contracts.• They may be applied when the parties have They may be applied when the parties have

agreed that their contract be governed by agreed that their contract be governed by general principles of law, the general principles of law, the lex lex mercatoria mercatoria or the like.or the like.

General PrinciplesGeneral Principles

• Pacta sunt servandaPacta sunt servanda• Rebus sic stantibusRebus sic stantibus• Performance in good Performance in good

faithfaith• Not opposed behavior Not opposed behavior

may change contractmay change contract• Effet utileEffet utile• Use creates Use creates

presumption of presumption of acceptanceacceptance

• Actori incumbit Actori incumbit probatioprobatio

• Force majeureForce majeure• Mitigation of Mitigation of

damagesdamages• Foreseeability of Foreseeability of

damagesdamages• Exceptio non Exceptio non

adempleti contractusadempleti contractus• estoppelestoppel

Equity ???Equity ???

• Equity in national law ?Equity in national law ?• Equity infra legemEquity infra legem• Equity contra legemEquity contra legem

Lex Mercatoria = Lex Mercatoria = Equity ???Equity ???

• Specific agreement for Specific agreement for – Amiable compositionAmiable composition– Ex aequo et bonoEx aequo et bono

• Applicability lex mercatoria without Applicability lex mercatoria without agreementagreement

Transnational public Transnational public policy ?policy ?

• Not regional ( e.g. antitrust)Not regional ( e.g. antitrust)• Truly transnationalTruly transnational

– Corruption ?Corruption ?– Human traffickingHuman trafficking– DrugsDrugs– Arms traffic ???Arms traffic ???– Money laundering ???Money laundering ???– Respect of IP ???Respect of IP ???