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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 Lex Mercatoria as a Legal System

The Lex Mercatoria as a Legal System

(p.161) 7 The Lex Mercatoria as a Legal System
The Lex Mercatoria in Theory and Practice

Orsolya Toth

Oxford University Press

This chapter examines the lex mercatoria as an autonomous a-national ‘legal system’. It tests a-national law against Hart’s concept of law and explores secondary rules within the lex mercatoria. The chapter argues that a lex mercatoria rule is recognized if (i) conduct and (ii) opinio juris (critical reflective attitude) emerge, which constitute the rule of recognition. The rule of adjudication is applied in arbitration, but most procedural aspects are within the parties’ autonomy which constitute secondary terms of adjudication. Both the rule of recognition and rule of adjudication are procedurally connected to the lex loci arbitri. The chapter argues that the lex mercatoria does not have a secondary rule of change, because its customary rules emerge and whither spontaneously. The secondary rules of the lex mercatoria are not purely a-national, but they fulfil the function of secondary rules in Hart’s thesis and allow the lex mercatoria to operate as law.

Keywords:   lex mercatoria, legal system, a-national law, concept of law, secondary rules, rule of recognition, rule of adjudication, rule of change, arbitration, lex loci arbitri

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