The Concept and Utility of New New Lex Mercatoria
Date Issued
2011
Date
2011
Author(s)
Ju Hsu, Chiao-
Abstract
International commercial trade creates the enormous commercial interest, but conventional routes to solve the international trade dispute-- “conflict of law”-- has been unable to deal with the changeable and diverse trade. It waste a lot of time to follow “the choice of law” to choose the correct governing law in the court. But according to the conflicting laws from countries to countries, there is a problem that the litigants have the same international trade dispute in different governing courts which use different governing rules. It leads to transnational commercial merchants couldn’t estimate the risks and costs of the commerce correctly, which might be harmful to the developments of transnational commerce. In order to solve this issue, transnational commercial merchants create new rules suitable to govern disputes of international commerces in the repetition of trades. Based on the comprehensive understanding of their need, those transnational commercial merchants set the principle of the law which is now called “lex mercatoria”.
The purpose of this dissertation is a introduction and discussion about the “new new lex mercatoria”. Firstly the problem awareness is illustrated in Chapter 1. A brief history of lex mercatoria is described in Chapter 2. In Chapter 3, the characters of international commerces, the background of developing new new lex mercatoria, the differences of “conflict of law” and “new new lex mercatoria”, and which one is more suitable for solving contemporary dispute of transnational commerces, are discussed. In Chapter 4, efforts are made to clarify the concept of new new lex mercatoria, and to give it a definition. In Chapter 5, I try to suggest some ways to introduce the concept of new new lec mercatoria into the practice of courts in Taiwan. The most important method is through the agreement of parties. The other one is through the explaination of civil law article 1, which is, by deciding what affiliation the new new lex mercatoria belongs to, the principle of law or customary law.
Subjects
Lex Mercatoria
Law Merchant
International customary law
Agreement of Parties
Arbitration
International Trade
CISG (Convention on Contracts for the International Sale of Goods)
DCFR(Draft Common Frame of Reference)
SDGs
Type
thesis
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