However, the approach taken here is that the several points of view as regards good faith and the lex mercatoria need to be brought together in one coherent explanation in order to cover the totality of the principle. It makes the distinction between anational law and dissertation law that permeates the place over law merchant simply irrelevant by transcending it. In England, prior to the Act emphasis added , it was axiomatic that an English arbitrator was bound to apply English law, including the English conflict of laws rules to decide the substance of any dispute, and many of the most important cases in the conflict of laws arose by way of appeal on matters of law from arbitral awards. You already recently rated this item. Int’lat 67 et seq.

This thesis means to offer an explanation and judgement on good faith in the modern transnational commercial law. Schmitthoff holds that standard contract may develop into custom by general constant use, e. A modern lex maritima does exist in international bills of lading, charter party forms, marine insurance and in universal terms and practices throughout the shipping world; these instruments are applied by arbitrators as part of the lex mercatoria regardless of national law or international convention. This becomes more obvious as lex mercatoria frequently reproduces principles and doctrines already included in domestic legislation. This is one of the reasons — the subjective element — that prompted the hypothesis that there could be some influence of national legislations over the concept of good faith in transnational law. The other consequence of this approach was that, just as in the English courts emphasis added , an English arbitrator could only apply a national legal system, designated as applicable by the relevant choice of law rule.

Finally, I thank all those who supported me in any respect during the completion of the thesis: As regards the choice of law rules binding on the English Courts, see the following cases: Altogether they mean objective good faith, that is, a standard of conduct or, better, a general principle.

This study offers a theory about the meaning of good faith in the lex mercatoria, a theory which mixes historical and comparative elements.


In conclusion, both arbitral tribunals and domestic courts apply lex mercatoria. On the other hand, the private parties to a contract are not well-disposed to submit the solution of an eventual dispute to the law of the other party and, a fortiori, to the law of the host state in the case of a foreign investment agreement. Lexmerdatoria a result, it can be said that as long as the principles of lex mercatoria are dispersed and inconsistent, lex mercatoria cannot be an autonomous law.


It will be proposed that good faith cooperation responds to the needs of global commerce; therefore, the probability of a change of meaning is associated with a change in the way to dissertatiion internationally.

dissertation la place de la lexmercatoria

Tetley, with the excellent example of lex maritima, asserts the existence of the lex mercatoria in this area. The backdrop of natural law in the seventeenth century is to be found in the scholasticism. They apply it as a matter of dissertatkon.

Salvatore, Erika – La nuova lex mercatoria, in: For their work they disaertation a method of study unknown to the Romans themselves, insisting that contradictions in the legal material were only apparent. It is considered here that the work of formulating agencies is the formal face of the lex mercatoria. The more frequent and sometimes exclusive application of lex mercatoria instead of domestic substantive laws causes some legal uncertainty because it is not clear when a principle should be considered as lex mercatoria.

After the creation of states and the tenacious defence of their sovereignty, what prevails nowadays is the creation of zones of free trade and labour worldwide.

The price was fixed at 8 cents per cubic meter. Conversely, Carbonneau maintains that states have legitimised the procedure of arbitration, its autonomy and, by strengthening its results, enforce them; therefore lx content of arbitral awards can have precedent value. Consequently, it prevents domestic legislations which are more favourable to national importers or exporters.

dissertation la place de la lexmercatoria

In other words, the praetor just shaped something pre-existent in the civil community. However, many authors within this group recognize that the lex mercatoria could not exist without the complement of national and international law.

dissertation la place de la lexmercatoria

See Chapter Two, n From a practical point of view, it is essential to clarify this before having recourse to good faith in contracts through reference to a national or non-national system that recognises it. A more or less universal consensus upon the general rules in commerce can be forecast.


La lex mercatoria constitue-t-elle un ordre juridique efficace ?

In times of crisis, such as war or inflation, this period of time could be relatively short. S E Thorne, Henry de Bracton It has been suggested that the lex mercatoria is not absolutely independent of domestic legislation. The elements of good faith or fair dealing, as seen by the arbitrators, came not from the internal law of a given state, but from perceptions of the arbitrators about how merchants in international transactions generally do behave and expect each other to behave … I see the denomination of lex mercatoria as an attempt, only partly successful, to give doctrinal support to what arbitrators actually do.

Citations are based on reference standards. The argument is addressed through the study of the development of good faith in history and in particular national laws from the civil and common law areas in order to establish: It seeks to demonstrate the hypothesis that this concept is objective there is no attempt to search for the intentions of the parties and that it is related to the needs of commerce nowadays.

Chapter Four analyses the principle of good faith in international instruments representative of the lex mercatoria. In addition, this thesis postulates the influence of civil and common law on the development of the concept of good faith in the lex mercatoria. Gautrais and others n 1. Leonid application of lex mercatoria by domestic courts and Shmatenko is a Junior Fellow and Doctoral international arbitral tribunals instead of or candidate at the Chair supplementary to domestic substantive law.

However, it still found its way into legislation as customary law. At the beginning, England was excluded since at the time of the Norman invasion there was a law devoid of Roman influence.