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On Law, Politics, and Judicialization$
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Martin Shapiro and Alec Stone Sweet

Print publication date: 2002

Print ISBN-13: 9780199256488

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/0199256489.001.0001

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Globalization of Freedom of Contract

Globalization of Freedom of Contract

Chapter:
(p.296) Globalization of Freedom of Contract
Source:
On Law, Politics, and Judicialization
Author(s):

Martin Shapiro (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/0199256489.003.0009

The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Shapiro’s paper, which was originally published in The State and Freedom of Contract (ed. Harry Scheiber, Stanford University Press) in 1998) first introduces the Lex Mercatoria (the law of merchants) in relation to freedom of contract and contract law, and then discusses globalizing tendencies in contract law, doctrine, and jurisprudence, before moving on to globalizing tendencies in contract practice, using the legal doctrine of conflict of laws as a baseline for measurement of globalization tendencies. Here, Lex Mercatoria (or general principles of law) often play a substantial part in the resolution of contract disputes, particularly where arbitration is involved. Shapiro goes on to deal with the unification of private law in the United States in the 1920s (the trans-state harmonization of contract law), which he uses as a benchmark to assess the massive post-Second World War movement to a global law of contract. Aspects addressed include the globalization of contracting practice and law, the American-style contract (in relation to franchising law and mineral (non-oil) development contracts), and developments in business organization and law institutions.

Keywords:   American-style contract, arbitration, business law, business organization, contract disputes, contract law, franchising law, Freedom of Contract, globalization, Lex Mercatoria, merchant practice, mineral development contracts, trade law, trans-state harmonization of contract law, United States

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