Conformed Payment in Case of Default under lex mercatoria

Abstract

The freedom of parties in the choice of applicable law is an interesting and relevant for practice feature of international commercial transactions drawing attention of researchers and businesspeople. The choice of law provides benefits for the parties. Increasingly, the application of lex mercatoria sources is becoming popular to govern legal relations defying national law. The paper analyzes the possibility to apply sources lex mercatoria as a contractual statute on the whole and the efficiency of such choice of rules to govern the relations to charge damages in particular. The author answers the following important for practice questions. May the parties choose lex mercatoria in the event of unsettled legal relations e.g. damages? To what extent can it be efficient in the situation with damages? What are the perspectives of enforceable performance decided on the basis of lex mercatoria documents? The author draws special attention to the issues of applying lex mercatoria sources due to some reasons such as scarce possibilities to govern this area of conformed amounts for default in UNIDROIT principles and Model rules of the European contract law and the lack of case practice to interpret key aspects when charging damages. In particular, lex mercatoria acts do not determine the proportion of charging damages and default charge, it lacks provisions on the size of excessive charge as well as its minimum. This and other issues represent the area of issues in regulating conformed amounts for default under lex mercatoria. The successful solution of the issues presented in the paper may promote to applying lex mercatoria in regulating damages.