Jump to ContentJump to Main Navigation
The Lex Mercatoria in Theory and Practice$
Users without a subscription are not able to see the full content.

Orsolya Toth

Print publication date: 2017

Print ISBN-13: 9780199685721

Published to Oxford Scholarship Online: March 2017

DOI: 10.1093/acprof:oso/9780199685721.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 20 January 2020

Conflicts Recognition of the Lex Mercatoria

Conflicts Recognition of the Lex Mercatoria

The Proposed Model

(p.229) 9 Conflicts Recognition of the Lex Mercatoria
The Lex Mercatoria in Theory and Practice

Orsolya Toth

Oxford University Press

This chapter makes proposals to increase the predictability of choosing the lex mercatoria as the governing law by relying on the proposed theoretical model. It argues that ‘voie directe’ is not the negation of conflict of laws, but an autonomous conflicts rule which enables arbitrators to select a-national law to safeguard the parties’ reasonable expectations. The parties’ membership within the same business community should be a new de-localized objective connecting factor which links the dispute to the lex mercatoria. This new connecting factor may be used under ‘voie directe’ discretion or the closest connection test. The notion of ‘implied negative choice’ should be discarded, because it is an objective method akin to voie directe, as the Westinghouse case demonstrates. The chapter proposes a test for a ‘real’ implied choice and offers clarifications for an express choice of the lex mercatoria to assist parties with drafting their choice of law clause.

Keywords:   lex mercatoria, governing law, voie directe, conflict of laws, connecting factor, closest connection test, implied negative choice, implied choice, express choice, Westinghouse

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .