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Private International Law and Global Governance$
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Horatia Muir Watt and Diego P. Fernández Arroyo

Print publication date: 2014

Print ISBN-13: 9780198727620

Published to Oxford Scholarship Online: March 2015

DOI: 10.1093/acprof:oso/9780198727620.001.0001

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The Merchant Who Would Not Be King

The Merchant Who Would Not Be King

Unreasoned Fears about Private Lawmaking

7 The Merchant Who Would Not Be King
Private International Law and Global Governance

Gilles Cuniberti

Oxford University Press

Private powers increasingly legislate for themselves, and one could fear that the autonomy that they gain as a consequence might be misused. While the breadth of the production of private norms cannot be disputed, the goal pursued by private powers issuing and relying on those norms has not been clearly ascertained. This chapter argues that it should be. Private lawmaking is cause for concern essentially because most scholars have assumed that private powers do not only produce norms and rules of conduct, but also claim autonomy from nation states. Yet, the fact that private powers lay down rules does not mean that they claim, and even less have, complete autonomy from nation states. It could perfectly well be that the major part of private norm production takes place in a framework designed by nation states, which would thus grant limited, and certainly always controlled, autonomy to these powers.

Keywords:   lex mercatoria, private lawmaking, international commercial arbitration, choice of law, default rules, incomplete contracts

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