Richard j howarth I. Introduction

Characteristics of Lex Mercatoria

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Characteristics of Lex Mercatoria

Few commentators have addressed the fundamental, if not critical question of essential characteristics required of Lex Mercatoria as a credible body of law.74 Berger, without further comment, refers to the 'desirable characteristics' as 1) universal character, 2) flexibility and dynamic ability to grow, 3) informality and speed, and 4) reliance on commercial custom and practice.75 That does not help greatly, and arguably suffers from the same malady of vagueness and ambiguity as certain definitions cited above. Nygh assists more in identifying the essential features as: a) the system must be autonomous; b) the system must provide rules 'sufficient to decide a dispute'; and c) it must be a system of law.76 Although possibly circular in nature, these characteristics are credible in that such criteria must be obligatory attributes of any legal system. Nygh observes that autonomy does not mean that Lex Mercatoria must be fully self-contained 'in the sense that it excludes national and international legislation' and further remarks that '[o]ne of the [LexMercatoria] sources [flows] from the comparison of national laws and assent given to a [particular] proposition at the international level'.77 On the question of rules 'sufficient to decide a dispute', debate prevails: although Lord Mustill holds that rule universality is essential to credibility,78 Lowenfeld maintains that 'universality depends on the universe the parties are acting within and that universe may be quite different for traders from Islamic countries compared to West European or North American contractors'.79 The bottom line on essential characteristics of the LexMercatoria seems that for universal credibility, it must be 'a system of law' with standards no less than that attributable to a state legal system with international standing and authority.

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