Lex mercatoria: Medieval Myth or Phenomenon of Globalization?

Abstract

Lex mercatoria is a phenomenon magnetically attractive for contemporary scholars and practitioners. However, the more information about it exists or appears, less clarity and harmony the concept acquires. Lex mercatoria has both its ardent followers and skeptics seeking to debunk this sublegal myth. The article attempts to shift the perspective and approach of the study to the problems of understanding the essence of the modern lex mercatoria in a systematic manner through the prism of the historical prerequisites for the formation of a certain autonomous system of norms and conditions of modern times, marked by globalization processes. The author found it interesting to look at lex mercatoria in contemporary legal paradigm, considering the current understanding of those evolutionary processes that occur in this area. The article examines the issues of institutionalization of lex mercatoria in the modern system of normative regulation of cross-border relations. The business community generates, uses and should qualify the significant pool of non-legal norms that, in fact, are riddled with crossborder trade and other areas of cross-border communication. Modern lex mercatoria is changing along with international commercial arbitration becoming the law to arbitration or the law of arbitration. The progressive codification of lex mercatoria, that being a trend this stage of its development, in a sense changes the nature of lex mercatoria, depriving it of the spontaneity and authenticity. “Super-new lex mercatoria” experiencing, according to some views, its third stage of development, steadily moves away from its historical roots. To what will eventually lead such a rebirth: the degeneration or the formation of a global legal or sub-legal bulk? All these changes are reflected in law enforcement practice. In this regard, the article is of practice-oriented nature: most recent analyses of written and codified sources of lex mercatoria, prospects of application of norms of lex mercatoria by state courts and international commercial arbitrations.