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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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The Existing Accounts of the Lex Mercatoria

The Existing Accounts of the Lex Mercatoria

(p.31) 2 The Existing Accounts of the Lex Mercatoria
The Lex Mercatoria in Theory and Practice

Orsolya Toth

Oxford University Press

This chapter evaluates the key accounts of the lex mercatoria to select the most promising concept. Clive Schmitthoff adopted a wide view of the lex mercatoria and included all written measures, embracing codified contract terms, and international conventions within its ambit. The chapter discusses the status of the UCP and INCOTERMS and concludes that they are contract terms and cannot serve as the governing law. The wide view confuses contract terms with legal rules. Berthold Goldman adopted a narrow view and included customary rules and general principles within the lex mercatoria. He attributed norm-creating potential to the international business community, but failed to exclude written measures. Roy Goode’s purist view clarifies that the lex mercatoria consists solely of unwritten trade usage, whereas transnational commercial law includes written measures. The purist view adopts an analytical approach and remedies the isolation of the debate by considering the circularity paradox of opinio juris.

Keywords:   lex mercatoria, Clive Schmitthoff, Berthold Goldman, Roy Goode, INCOTERMS, UCP, international business community, general principles, opinio juris, transnational commercial law

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