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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 Status Quo

(p.195) 8 Conflicts Recognition of the Lex Mercatoria
The Lex Mercatoria in Theory and Practice

Orsolya Toth

Oxford University Press

This chapter examines the lex mercatoria as the governing law in arbitration and evaluates the status quo by reviewing arbitral awards. It discusses the development of the conflict of laws in arbitration shaped by a tension between territorial conflicts rules and de-localized arbitration. The development has yielded increased party autonomy and arbitral discretion to apply a-national law, reflected for example in the UNCITRAL Model Law or the ICC Rules. Arbitrators have used the concepts of ‘implied negative choice’ or ‘voie directe’ to apply a-national law. The chapter discusses the Westinghouse case to illustrate implied negative choice. It argues that the application of the lex mercatoria depends on whether arbitrators are enthusiasts or sceptics of the concept, which undermines the certainty of the choice of law process. The problem remains that if we do not know what the lex mercatoria is, it is impossible to determine when and how it applies.

Keywords:   lex mercatoria, governing law, de-localized arbitration, conflict of laws, a-national law, UNCITRAL Model Law, ICC Rules, implied negative choice, voie directe, Westinghouse

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