Studies On The Development Trends Of New Law Merchant

After World War II, with the rapid development of the science and technology as well as the social economy, the economic globalization has continued developing. In this case, the international commercial legal relationship has tended to be more complex. However, the traditional, rigid and mechanical domestic laws have become unable to regulate the international commercial legal relationship well. To get rid of shackles of domestic laws, the merchants were urgent to create a new kind of self-governing law which originates from their international commercial practice. This new kind of law originates from the European medieval law merchant from the perspectives of nature, characteristics, sources as well as the form. Schmitthoff, the famous British legal scholar, named this new kind of law New Law Merchant. New Law Merchant is created to adapt to the development of international business. After its birth, New Law Merchant has played an indispensable role in regulating the international commercial legal relationship. New Law Merchant has not only satisfied the need of regulating the international commercial legal relationship but also manifested the commercial value of pursuing the efficiency, which will surely promote the development of the international business and China’s foreign-related economy.Since the1950s and1960s when Schmitthoff firstly put forward the idea of New Law Merchant, controversies on the definition, application, status, validity and other theoretical issues of New Law Merchant have never stopped. At the present, there are multiple trends of New Law Merchant. The paper aims to gain the overall understanding of New Law Merchant through thorough studies on the development trends of New Law Merchant, which will guide the theoretical and practical development of New Law Merchant in a correct direction.The paper begins with the discussion about the main theoretical issues of New Law Merchant. The author intends to achieve uniform and reasonable understanding of the controversial theoretical issues by analyzing the present opinion. The author hopes to obtain thorough understanding of New Law Merchant based on the introduction of the theoretical knowledge of the European medieval law merchant. The author insists that New Law Merchant ought to be defined as New Law Merchant which originates from the European medieval law merchant rather than the transnational commercial law or lex mercatoria. The New Law Merchant is defined as rules which are created gradually and spontaneously during merchants’ long-term international commercial practice and accepted universally in the whole commercial community. New Law Merchant is independent of both the domestic law and the international law, with the international commercial relationship as its regulating object. New Law Merchant is characterized of legislative body’s privateness, creeping codification, internationality, convenience, flexibility and self-governance. At the same time, there is one shortcoming of uncertainty. Although it originates from the European medieval law merchant, they are essentially different in the aspects of social foundation, legal system, legal validity, speed of forming and so on.The second, third and fourth chapters analyze the development trends of New Law Merchant on basis of its development in the commercial practice, from the perspective of legislation, judicial practice as well as the relationship between New Law Merchant and the conflict-of-law rules. From the perspective of the legislation, New Law M(?) characterized of the unification and codification as for the form as well as continuous amendments in the traditional field and spreading into new fields as for the content. From the perspective of judicial practice, New Law Merchant gets more applicable in the international commercial practice especially in the international arbitration. At the same time, the legal validity of New Law Merchant is strengthening. Form the perspective of the relationship between New Law Merchant and the conflict-of-law rules, both of them are great tools for regulating the international commercial legal relationship. New Law Merchant will play a more significant role in regulating the international commercial legal relationship. Besides, the significance of conflict-of-law rules is reducing.Last but not least, China should reflect on the country’s development and put forward some beneficial exploration based on the development trends of New Law Merchant. China should take part in the codification of New Law Merchant actively and integrate into the international economic development. China will absorb the excellent elements of New Law Merchant into the domestic commercial law. Reflecting on the related rules in China’s legal system, China should enlarge the application of New Law Merchant. Through studying the relationship between New Law Merchant and the conflict-of-law rules in the international commercial practice, the author holds that we should reconstruct our country’s commercial legal system. We should pay more attention to the significant role of self-governing law by the merchant. The author advocates that the statutory commercial law and the self-governing law by the merchant should develop interactively. Also, the author points out that New Law Merchant isn’t yet a perfect legal system. Therefore we should highlight studies on New Law Merchant.