Commentary On Berger’s Theory Of The Creeping Codification Of The Lex Mercatoria

Since the1990s, the international political and economic environment has undergone a lot of changes and the form of international commercial legislation is also showing a trend of informality. The existing lex mercatoria theories have been unable to provide theoretical support for these changes and trends. Combining with the new characteristics of the development of international commercial law, professor Berger at the University of Munster, Germany, puts forward the theory of the creeping codification of the lex mercatoria on the basis of the existing lex mercatoria theories to fill the blank of the theoretical support in the new situation.Berger advances the views of the privatized law-making process, lex mercatoria being a third legal system and the creeping codification which constitute the contents of his theory and among which the last one is the theoretical core. He believes that the international commercial practices after the mid-20th century reflect the changing paradigm of international commercial law:privatized law-making. He also considers the legal pluralism, the contractual consensus and self-regulatory constitute the theoretical premise, the core and the guarantee of effectiveness of privatized law-making and the concept of privatized law-making finally opens the door for the acceptance of the lex mercatoria as an autonomous legal order. Berger points out that the objections which are traditionally raised against the lex mercatoria as an autonomous legal system are based either on structural or theoretical assumptions. If the "system" is understood as "an unwritten framework of values and convictions" and "law" is understood as norms with a dual role of representing the general conviction of what is right or wrong and forming a’peacekeeping order’, it will be able to prove that the lex mercatoria possesses the nature of "system" and "legal". Meanwhile, the flexibility and openness of lex mercatoria and the issue of privatized law-making prove the "autonomy" of the lex mercatoria. So, the lex mercatoria is an autonomous, transnational legal system, a third legal system independent of the domestic law and the public international law. The requirement for legal certainty in commercial practice makes Berger realize that the theoretical discussion focus of the lex mercatoria should be transformed from "lex mercatoria:yes or no?" to "lex mercatoria:when and how?". He deems that among the approaches to dealing with the form of existence of the lex mercatoria, the creeping codification approach which regards functional legal comparison as methodical foundation and the interaction between general principles of law and concrete norms as structural basis point and reflects the two main characteristics of informal and creeping is the most effective. Although the existing restatement-technique is an effective form of the creeping codification approach and the UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law which adopt the restatement-technique correspondingly become the specific examples, their formal closure is still unable to meet the lex mercatoria’s nature of "living law" to the largest extent. Therefore, Berger actively promotes the more open and flexible lists as a better form of the creeping codification and drafted "List of Principles, Rules and Standards of the Lex Mercatoria".In theory, it proves the status of an independent legal system of the lex mercatoria, transfers the lex mercatoria doctrine’s theoretical discussion focus, advances a different approach to codifying lex mercatoria, provides the methodical foundation for the lex mercatoria, highlights the role of the international commercial arbitration, ensures the lex mercatoria’s nature of "living law" and comes closer to the answer to the existence or absence of an autonomous legal system of the lex mercatoria; in practice, it enhances the workability of the lex mercatoria doctrine in legal practice and secures the enforceability of arbitral awards based on the lex mercatoria, so the theory of the creeping codification of the lex mercatoria has important theoretical and practical significance. But at the same time, some of the arguments of the theory have also been criticized and opposed by some scholars. Although there is a need to further explore and research on some views, in the light of its important theoretical and practical value, we can still look forward to the broad prospect for development of the theory of the creeping codification of the lex mercatoria in the21st century.