The Lex Mercatoria in Theory and Practice

The book offers a theoretically justified and pragmatic concept of the so-called 'lex mercatoria' contributing to the debate concerning the existence of this law as an autonomous, a-national and universal legal system established by trade practice. This new work equips commercial arbitrators and counsel with a formula to 'recognize' and apply a rule of the lex mercatoria in practice. It argues that a rule of the lex mercatoria is established if there is a majority congruent behaviour within a business community followed out of fear of criticism and a willingness to criticize others in case of deviation. This two-element test increases legal certainty and potentially reduces the time and costs of proving the rule. Case studies are included to illustrate the practical implications of the analysis and more difficult issues such as burden of proof, admissible evidence and the role of written harmonization measures are also considered. The approach adopted in the book reduces the elusiveness of the concept and offers an analysis which makes the lex mercatoria clearer for scholars and more attractive for practitioners.

1 - Lex Mercatoria - The Debate as it Currently Stands
2 - The Existing Accounts of the Lex Mercatoria
3 - Framework for an Analytical Account - Clarifying Terminology
4 - Framework for an Analytical Account - The 'Autonomous' Status of the Lex Mercatoria
5 - A Rule of the Lex Mercatoria - Opening the Debate to Public International Law
6 - A Rule of the Lex Mercatoria - Opening the Debate to Jurisprudence
7 - The Lex Mercatoria as a Legal System
8 - Conflicts Recognition of the Lex Mercatoria: The Status Quo
9 - Conflicts Recognition of the Lex Mercatoria: The Proposed Model
10 - Substantive Recognition of the Lex Mercatoria

Dr Orsolya Toth is Assistant Professor in Commercial Law at the University of Nottingham. She has formerly been a member of the International Arbitration Group at Allen & Overy. She was educated at Keble College, Oxford where she obtained her DPhil, MPhil and MJur degrees. She was awarded the Allen & Overy Prize for best performance in Transnational Commercial Law during the BCL/MJur examinations at Oxford. She has acted as counsel on numerous commercial and investment treaty arbitrations in a range of industry sectors. Dr Toth is the author of several articles in the field of legal harmonization and arbitration.