The Applicability Of Lex Mercatoria And Its Promotion

As the increasing tendency of globalization, Lex Mercatoria appeared, aiming at overcoming the limitation of the classical conflict of laws doctrine in settlementing international civil and commercial disputes. Fulfilling the needs of international commercial practice with its flexible and convenient advantages, Lex Mercatoria is more and more frequently being applied. The lex mercatoria itself has a strong practical reason naturally. It is quite a controversial issue that, whether it can be applied in international legal practice, and to what extent, concerning both academics and practitioners.As comprehensive national power grows, our nation has made a great improvement in international legal practice, along with international trade disputes gradually increasing. However, far behind the development of the practice, domestic researches towards Lex Mercatoria particularly focus on theoretical aspects, and there’re rare writings on application of Lex Mercatoria. Not only is the deficiency of research in application of Lex Mercatoria barely beneficial to the international leagl practice, but also it’s unprofitable for the further development of Lex Mercatoria theory. To serve as illumination, the author discussed the situations Lex Mercatoria applied and the problems in the Lex Mercatoria study.This text mainly consists of four chapters:Chap.1summarizes the Development of Lex Mercatoria Theory and the Definition of New Lex Mercatoria. Lex Mercatoia originated in Western Europe in the Middle Ages, when it had already reached certain degree of universality and autonomy, and formed many kinds of rules, such as Tabula Amaltitanc and Consolato Del Mare. It’s applied mainly at the Piepoeder. Based on global market, the new Lex Mercatoria aims to overcome the limitation of traditional rules of conflicts. Schmitthoff and Goldman, the founders of Lex Mercatoria. take different paths to define its context. Schmitthoff stressed that the sources of Lex Mercatoria includes domestic law system, while Goldman insists on it’s nationalless.Chap.2expounds sources of Lex Mercatoria. sources of Lex Mercatoria are related to the application of it. Nowadays, it includes international commercial treaties, general principles of law. international commercial conventions, international standard contracts, international commercial arbitration and so on. Chap.3puts emphasize on the application of Lex Mercatoria in cases. In some cases, Lex Mercatoria satisfies mandatory, which means that arbitrators could directly apply the Lex Mercatoria, excluded from domestic law chosen by litigants or according to conflict of laws. The main source of Lex Mercatoria often loses its equilibrium, and general principles are more universal than any other kinds. And the concrete content of Lex Mercatoria is always defined by arbitrators.Chap.4focuses on the global application of Lex Mercatoria. According to CENTRAL Survey and UNIDROIT Survey, Lex Mercatoria is widely used in international contracts and international commercial arbitrations. UNIDROIT Principles of International Commercial Contracts is one of the most successful examples. And the application of Lex Mercatoria has the quality of diversity. At the same time, the CENTRAL Survey shows a lack of knowledge and information on the content and background of Lex Mercatoria and a resultant hesitation to apply it in practice.Chap.5puts forward some advices on application of Lex Mercatoria."Creeping Codification" exploring the lex mercatoria in specialized areas, spreading it on a world-wide basis,innovating legal education and so on.are useful measures to promote the application of Lex Mercatoria in the wordwhile.Chap.6illustrates application of Lex Mercatoria in China. In China attitudes towards legislation and judicial practice is comparatively cautious, as a result, the scope and sequence of application are highly restricted. Under economic globalization, our nation should accept Lex Mercatoria with open mind, make Lex Mercatoria mature and apply it courageously.