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The Lex Mercatoria in Theory and Practice$
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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

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Conflicts Recognition of the Lex Mercatoria

Conflicts Recognition of the Lex Mercatoria

The Proposed Model

Chapter:
(p.229) 9 Conflicts Recognition of the Lex Mercatoria
Source:
The Lex Mercatoria in Theory and Practice
Author(s):

Orsolya Toth

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199685721.003.0010

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

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