RISULTATI RICERCA

The lex mercatoria is a legal system deserving of being interpreted and understood for its own sake, but it is also evidence of a different, more complicated process. Although the lex mercatoria is not new, it now has unprecedented quantitative and qualitative dimensions that can only be understood in relation to a different implication of the process of redefinition of political spaces. The use of the evidence paradigm constitutes a good analytical exercise for legal scholars to explain how the market and its rules have escaped from traditional legal frameworks. The increase in communications and their reach beyond the confines of physical dimensions (jobless, deskless and timeless) produce above all a decline in publishing models related to the familiar phenomenon of legal paternalism. The lawyer who is trained in our universities and then moulded in our courtrooms to generate rivers of cloudy rhetoric is curt out of a game that makes no allowance for faulty contracts to be integrated by the authorities and where the destiny of rights is related to a minimum standard of competitive efficiency of services. Once again, legal culture is a long way away from reality: if law is to be able to speak in the name of fundamental rights and claim to have a minimum of universal relevance, it must think in terms of spaces and subjects unfettered by the idea of narrow homelands.

This article looks into the legal spaces removed from state regulation, in which seafarers have had the opportunity to draw up rules of a private nature to regulate their relations, or in which they benefit from internationally established regulations that restrict the power of the states to legislate about them. The area where it appears to be more appropriate to talk about a socially originated law, whose formation was influenced significantly by the recipients of the norms, is the one that covers the conventional uniform rules of navigation. The organisations that represent the interests of seafarers (from ship owners to seamen’s unions) take part in drawing up these regulations more than in other sectors of the laws governing international transport and commerce. An essential document in this regard is the United Nations Convention on the Law of the Sea, dated 10 December 1982.

This article takes a look from a socio-legal perspective at the historically determined outlines of the ratio juris of today’s lex mercatoria and of the ratio status of today’s Communitas Mercatorum, in relation to the salient characteristics of contemporary legal and political dynamics, paying particular attention to the European project and constitutional process. After a brief description of the historical evolution of these variables, whose purpose is to correct the simplifications instigated by the tradition of positive law, the analysis then concentrates on the current socio-legislative context, whose distinctive trait is not in fact the so-called globalisation of law, but, on the contrary, the co-evolutionary, asynchronous, asymmetric and non-systemic coexistence of a multiplicity of phenomena of pluralism, among which pride of place goes to institutional incompatibility, legal fundamentalism and interlegality. On the basis of these precepts, the article then goes on to highlight the salient political question of today’s legal experience, i.e. the war being conducted by the big supranational and transnational economic corporations against the provisions of legal orders legitimated politically by the modern sovereign state, in order to gain the upper normative hand over social dynamics as a whole: a war that features the instrumental use of the lex mercatoria both on the technical and on the ideological plane. In view of the current trend in this war, what emerges is the importance of today’s efforts to achieve political and legal construction at the European level, whose purpose is to protect the symbolic and material borders of the European political economy by erecting a system of fundamental rights and freedoms, with respect to which the lex mercatoria itself certainly functions as an integral part of the Jus Commune Europae.

The end of the last century and the dawn of the new millennium brought the phenomena defined as globalisation and the digital revolution. When national borders are dismantled, the effects are evident in the sense both of the extension and of the reduction of the radius of action of systems of communication, economics and politics. The concrete problem that occurs to the mind of the lawyer is that of the normative source responsible for the task of disciplining these phenomena. The web surfer needs to know the resulting rules. To these rules, other more general ones must be added to cover the protection of personal data. The harmonisation of legal rules is an indispensable precept for the creation of an efficient single market. Harmonisation to the maximum degree appears to be desirable in the interests of facilitating the flow of information about products and services and their appraisal on the part of consumers. At the same time, a minimum of harmonisation, leaving optional spaces entrusted to EU Member States, seems to be more advisable so that business still has the leeway to offer differentiated services that are better than the standard. A balanced solution could encompass two objectives: (i) to achieve maximum legal harmonisation both of terminology and of concepts and legal instruments, an objective pursued by attempts to draw up a European code of private law; (ii) to maintain differentiated treatment for forms of protection that tend to improve on the minimum threshold, together with differentiated treatment, dictated by market requirements, for the economic contents of pricing, risk, advantages etc.

Whenever a major project is built (a power station, an oil refinery and ancillary installations, a chemicals plant, major roads and so on), the contract becomes what the parties establish and then experience on the site, which is often quite different from what is written in the original text and the applicable law. It is important to ensure that the contract is guided along a path that does not conflict with these rules, as they may loom back to be perilously relevant if the technical project manager is not flanked by far-sighted legal managers. This conflict leads to the involvement of arbiters, people who know practically nothing about the life of the project in question, although they know practically everything about the applicable laws.

After analysing the respective processes used reciprocally by the legal system and the economic system to observe each other and their specific interests in relation to the lex mercatoria, the author tackles certain questions raised by the legal system’s description and representation of itself and its capacity to identify the elements of continuity and of breakage between the lex mercatoria and state law, both in legal science and in jurisprudence and the production of regulations. As a result of his analysis, the author then suggests the need to undertake the reformulation of human rights and of fundamental rights, as the greatest threats to rights no longer come from states and the political power now, but are more inclined to come from the economic power. His reasoning starts with a review of the conception of fundamental rights as enshrined in Niklas Luhmann’s system theory, which identified the specific function of fundamental rights as the maintenance of the differentiation between the political system and other social systems.

The author underlines the types and diffusion of contracts between business concerns in international trade and the other reasons that are generating an increasing evolution of the rules and customs deriving from international practice that are known as the lex mercatoria, aiming at checking their impact in relation to contracts that have no elements subject to international regulation and therefore also in domestic law. The first step is (a) an examination of the possibility that the parties entering a contracts internal to the Italian legal system have to refer to the lex mercatoria to regulate certain clauses or groups of clauses in their contracts better or in full. Next (b), the author examines the possibility to refer both entire systems of rules and principles to the lex mercatoria and even (c) the entire system of the lex mercatoria. An examination of concrete cases demonstrates that the current trend in the Italian system is positive for point (a) and negative for points (b) and (c). This trend no longer looks sustainable on the basis of rules and principles (of the domestic public order) coherent with the current phase of evolution of the Italian legal order, such that it should be possible to refer to the lex mercatoria in general, with the sole limit of the principles of domestic public order. The trend common among Italy’s judges at present is to integrate a contract with the rules and principles of the lex mercatoria, or to identify an implicit intention among the contracting parties that is deduced from rules of objective interpretation. In conclusion, the essay attempts to record the significance that a more widespread application of the rules and principles deriving from international commercial practice could have in the evolution and perfection of new rules and principles and in the rationalisation of the old ones.

A great deal of discussion has raged and continues to rage about the new lex mercatoria and its constituent elements, to establish whether it is itself a norm or the source of norms, to determine its position vis-à-vis other norm producing sources, to identify its foundations and its strength, to clarify the mechanism whereby it is created and to determine the methods of its application in contemporary international commercial law. As domestic and international jurisprudence confirms that the lex mercatoria is of legal relevance, the next step is to ask why international commercial actors turn to it to solve their conflicts. Some responses to this question can be furnished by a critical use of the conceptual tool of the economic analysis of law. The result is one of unusual considerations that extend beyond the choice of arbitration and of the place where it is to be practised, also encompassing the determination of legal norms applicable to the merits of the conflicts in question. The participants choose the location of arbitration on the basis of the need for neutrality and to minimise the costs of the transaction, usually expressing a preference for those states with a greater degree of arbitration legal capital. This practice of shopping for law, meanwhile, generates competition not only between the legal orders of states, but also between these as a whole and the new lex mercatoria. This latter is expected to be invoked by international commercial actors only as long as it reduces the asymmetries of information about applicable legal orders and the relative costs of legal actions, thus constituting the cheapest choice.

Legally speaking, the globalisation of the economy reflects essentially on the law of property and the law of contract. This incidence is apparently divergent. While the effective safeguarding of real property rights are weakening, contract law is gaining strength as the central institution of the international market. In actual fact, the effect is the same, but is taking place on rather different planes. In both cases, the discipline in question is losing its anchorage in national legal orders. But while, in the case of real property, this loss of anchorage concerns national rules and institutions, in the case of contract law it concerns national rules and mindsets. This latter effect is particularly pronounced in those systems that cultivated the legend of the omnipotence of statute law in the past, relegating the principle of contractual freedom to the margins of legal reasoning, and that, as a consequence, now have difficulty understanding what is happening. In these cases, of which modern Italian legal experience is a good example, the development of markets requires a difficult change in mindset, on pain of marginalisation.

The current panorama of legal globalisation features no co-operative evolution but is marked by vigorous competition between legal orders. In particular, stark contrasts can be identified with regard to: 1. contract law, in which a rough-and-ready model of contract in the American style, focusing on the literal wording of the contract itself, clashes with a softer European model, focusing on good faith and the judge’s capacity to fill in the gaps in the written contract; 2. company law, in which a model strongly protective of the minorities, represented by strong actors in the international system, such as the American investment funds, clashes with a model that hinges on the powers of the majority, represented by the local actors who lead the companies underpinned by corporate investment collection plans; 3. property law, where a local ownership of real property conflicts with a global ownership of financial assets, inventions and patents. All of this takes place against the backdrop of competition for legal services offered to global companies by the various different national legal orders.

The Lex Mercatoria in the Mirror of Empirical Research (di Wioletta Konradi, Héctor Fix-Fierro) - ABSTRACT- A socio-legal perspective, both theoretical and empirical, has an essential contribution to make to the debate on the lex mercatoria. It is a discussion that goes beyond a limited area of the law, since it has broader implications with respect to the nature and function of law in the context of globalisation. This paper presents an overview of empirical research into the lex mercatoria. Existing studies, however, are still too scarce to be capable of providing a complete or coherent picture. Considering that the global economy is organised around sectors and networks, the paper proposes to select branches of trade or industries as objects of empirical study. This approach focuses on the processes of norm creation and the mechanisms for the stabilisation of expectations within particular social systems, as well as on the structural consequences of this type of self-regulation for both global law and national legal systems.

The effectiveness of the lex mercatoria is beyond question: the increasing number of arbitration awards that apply the lex mercatoria instead of domestic law to settle international disputes contradicts the view of those who consider it a mere phantom wandering around the world. National courts also refer to the lex mercatoria as a primary legal system separate from domestic legal systems. Moreover, it is a truly cosmopolitan legal system, within which distinctions between civil law and common law fade away, while principles from the developed areas of the Far East are making an entry. Critical remarks about the lex mercatoria that stress its lack of democratic legitimacy are not justified: the lex mercatoria is customary law, confirmed by the judiciary; its legitimacy is not that of statutory law, but that of the common law, which is also customary law, legitimised by virtue of the opinio iuris as confirmed by the judiciary.

The analysis of the lex mercatoria is of interest not only to the topic’s present aspect, but also to its historical roots. Within the framework of an analytical effort shared on the one hand by historians and on the other by lawyers and sociologists alert to current developments, there is one aspect that deserves everyone’s attention: the understanding of the differences between the phenomenon as it is today and the phenomenon as it was in the past. As a matter of fact, apparent similarities conceal not only a new lex mercatoria that is profoundly changed in itself, but also in a very different institutional, social and economic scenario. The rise of the lex mercatoria in the present day implies a challenge to the state. The new ‘Law Merchant’ completely escapes the traditional connotations of class, developing into a law with extensive repercussions that no longer acknowledge any geographical boundaries. This throws light on a paradox of the globalised world, in which laws and legislators are losing ground at the same time as vitality is regained by expressions of law in the singular that flow in the channels of universalism, crossing every territorial and cultural border.

Starting from the current doctrinal debate about the new lex mercatoria, this study analyses the problem of its legal nature and of whether it can be described as a true legal order of a new kind, in the light of the notion of legal pluralism and of the features considered to be essential for this purpose by the more significant among the general theories of law (normative, institutional, analytical). Taken together with the critical consideration of the main theoretical objections to the lex mercatoria (both legal and political in nature), this analysis leads to the conclusion that it has all the characteristics necessary to be considered an independent, separate legal order, both in international law and in domestic legal frameworks, one that functions in accordance with its own methods, generates its own rules, has a public order of its own and fulfils all the standard functions required of every legal order. The author then goes on to analyse the problem of how the lex mercatoria relates to other legal orders, highlighting how the former co-ordinates with public international law and with the various national legal orders in different ways. Lastly, she considers the inadequacy of the traditional positivistic vision that insists on framing rules governing conflict as though they were designed to refer exclusively to national legal orders, rather than attributing a more complex function to them, one better suited to the reality of modern society.

Any outline of the sets of rules usually labelled as lex mercatoria a label that is open to discussion, arguing that lex is not law and market is not its only object cannot skip the question of their origins. The reason is clear: the lex mercatoria was born when merchants and guilds created a customary law to cater for the needs of the new trade economy of the XII and XIII centuries. From the Italian communes where they were created by merchants and notaries, these rules including such institutions as the bill of exchange, the company, new rules of evidence and procedure took hold in Europe, England included, and elsewhere. Only later were they partially outlined in written statutes (as early as 1160 in Pisa) and in state ordinances (as in Colbert’s Ordonnance of 1673). One theory that is often expressed is that the lex mercatoria will eventually overwhelm national legal rules, becoming a de facto supranational law that caters for the exigencies of big multinational (mainly American) companies. This is neither real nor desirable. Firstly, it should be remembered that any market included the world market can only function properly if it has a set of established legal rules binding on all operators and not necessarily consistent with their wishes, such as European Union competition legislation. Secondly, some international legal rules already exist (such as the Vienna Convention on Contracts for the International Sale of Goods, 1980) and there will be others in future. The lex mercatoria is (or rather ought to be) a synthesis of legal customs, legal rules and legal doctrines concerning production and trade: a synthesis that includes not only interests, vested or otherwise, but also values and legal ethics.

This article is devoted to Weber’s concepts of the formal rationality and the material rationality of law. In particular, the opening paragraphs reconstruct Weber’s analysis of the process of legal rationalisation and its two directions (formal and material). The fourth and fifth paragraphs are then devoted to examining the relations that, according to Weber, exist between economics and law (especially between capitalism and law in the West). In the last paragraph, the author cites Weber’s critiques of the free law movements (Ehrlich, Kantorowicz). According to Weber, technical and economic development will consolidate the primacy of the legislator, such that juridical rationalisation will be primarily formal in nature. All excessive hopes of any “materialisation” of law will thus founder and, with them, above all the aspirations of academically trained lawyers to safeguard their dignity as a class vis-à-vis the rise of legislative law.

The topic of the lex mercatoria is of particular interest to the legal historian, both in relation to today’s new ideologies of internationalism, supported by a reference to the past, and with regard to the study of law sources. That being said, however, it is probably rather difficult to make a case for the existence in the Middle Ages and a substantial part of the modern era of an autonomous commercial system of rules and regulations, supranational, uniform and unfettered by local regulations. The existence of commercial conventions is undeniable. But they must be interpreted in a light that gives due consideration to the input of reciprocal influence, of the elaboration of doctrine and of the style of jurisprudence practised in the courts of the ancien régime.

Introducing a special issue of Sociologia del diritto devoted to the lex mercatoria, the author starts with an outline description of the state of the art of knowledge about the phenomenon, drawn from the literature at high theoretical levels related closely with those of globalisation and the crisis of the modern state. He then underlines the lack of any sufficient apparatus of empirical knowledge in the sociology of law about concrete applications of the lex mercatoria. A more detailed examination of the phenomenon could enable not only several important middle-range problems to be solved, but, by revealing the many bonds that link this type of contract law to national and international (e.g. European) legislation, might also prepare the way for certain commonplace assumptions, such as the crisis of state law of a political origin and of the state itself, to be questioned anew.

The concepts of rule and trasgression are related to space and to the act of walking through straight ore deviated paths. These concepts are privileged objects of every culturology, either sociological, anthropological or semiotic. De Certau theorizes a phenomenology of transgression through the analysis of poaching tactis, that is the study of those transgressive tactical behaviours observed in everyday life. What emerges from this analysis is a contiguity among transgression, excess, seduction and sedition that identifies in the sleeping body a shape (Morpheus) that deviates from the straight path (the rule) and puts the body awry.