April 2012

The Modern Lex Mercatoria and its Legitimacy

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley] Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under "Related Posts" below. What kind of legitimacy does the new lex mercatoria have? It is founded in fundamental principle, therefore in basic values, even in commerce very important, and otherwise in custom and practices themselves highly participatory, in party autonomy or in generally accepted principle of a more practical nature. It is not true that the law in commerce and finance is value-lite. Is that enough for its international legitimacy or should it go through some democratic process which suggests that even in international transactions there should be some scrutiny at state level or through parliaments? It is an argument that superficially appeals to many but is in error. First, historically, private law was hardly the product of a democratic process, Roman law never was nor were hardly the great modern 19^th Century civil codes. More importantly, even now, the common law is formulated by the courts. We also accept in conflicts law the law of any country and do not commonly enquire into the democratic legitimacy of national laws either. The argument concerns in particular policy and values and many believe that they can only emerge at the level of a (democratic) legislator but it would be a sad day indeed if values, social values in particular, could only enter private law though statutory amendment.  This would mostly be a long wait. Rather, it is well known that courts and practitioners in the daily application of the law move the law forward all the time and follow evolving fundamental principle.

The Notions of Certainty, Finality and Predictability

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley] Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under "Related Posts" below. Reliance on transnational immanent law formation, even if supported by some treaty law, coupled with the concept of a dynamic contract and movable property law, naturally raises issues of legal certainty under the modern lex mercatoria even if the question of the hierarchy of norms is sorted out. In this connection it is often argued that there is at least certainty when domestic law is applied to international cases pursuant to the canons of conflicts of law, but this certainty, even if it results, can be of such a low quality that it destroys everything. It was already said that domestic law is seldom meant for international transactions and does not mean to serve their needs or dynamics. In any event, it cannot cover whole portfolios of assets in different countries, nor international cash flows or the movement of assets trans-border. Combinations of national laws must then be used about which there remains much doubt. The result risks remaining not only unsuitable, but indeed also uncertain. Even if this is all true, there nevertheless remains the question of certainty under the new lex mercatoria to consider. Certainty itself is ephemeral in the law. We would not need ever more lawyers if it could be attained. There remains much doubt in the application of all law because the factual configurations differ all the time and we can have certainty only in pure repeat, therefore perhaps in conveyancing or in most traffic offenses, but not much else in a fast moving world. The cry for certainty is therefore ignorant of the world in which we live and is childish, as has often been pointed out (to start with Jerome Frank) but especially in transactions and payments, there is an overriding and public policy need for finality.

Weekday News Wrap: Wednesday, April 4, 2012

A part of the Syrian peace plan, brokered at the behest of Kofi Annan, includes the deployment of 250 UN peacekeepers for a ceasefire monitoring mission, scheduled for arrival in Syria in the next 48 hours. Russia accuses the "Friends of Syria" group that met in Istanbul over the weekend of undermining the UN Special Envoy Kofi Annan's peace plan. After bombs...

York University Faculty Torpedo $60 Million International Law Donation

The faculty of Osgoode Hall Law School at York University in Toronto are either pretty gutsy, or totally insane...

Matt Bors Says It All

Targeting and Causation

The past few weeks have seen some resurrection of the old claim that targeted killing operations have increased under the Obama Administration because detention of participants in armed conflict (as the United States defines it) has become too fraught with legal difficulty. Jack Goldsmith has been making that causal claim on the speaking circuit for his new book, Power...

The Operation of the Modern Lex Mercatoria: The Hierarchy of Norms

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley] Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under "Related Posts" below. It was submitted that the essence of the transnationalization of private law is the consideration of different sources of law. They may conflict. This would suggest a need for a hierarchy, a problem that also surfaces in foreign investment law. In the lex mercatoria we may further find (as in foreign investment law), however, that the law, in as far as we have it, is still insufficiently complete or underdeveloped at the transnational level.  When no clear transnational legal regime emerges, we are therefore still relegated to a domestic law as the default rule, in private law found on the basis of the ordinary conflict rules. To me that is fully acceptable and makes for a complete system for those who still think in those terms, but there are two observations to make. First, the room for the transnational sources will progressively expand and in international transactions the bias must be in their favour. Second, even where domestic law applies in international cases as the subsidiary or default rule, it becomes part of the transnational law or modern lex mercatoria and must fulfil its place therein.  In other words, if it does not make any sense or does not serve justified needs it will be adapted. It leads to the important conclusion that the application of English law in international cases is not the same as the application of English law in domestic cases. That then goes for all domestic laws. In truth and upon a more proper analysis (and perhaps unknown to themselves), this is the way international arbitrators now increasingly operate in finding the applicable law and it is at the heart of the modern notion of the lex mercatoria.  Arbitrators will apply fundamental principles first, then mandatory custom and practices, then mandatory treaty law to the extent existing, then mandatory general principles, then party autonomy, subsequently directory rules of custom, treaty law and general principles, and finally, if all fails, domestic private law.  A choice of a domestic law by the parties moves it up from the residual level or default level to the level of party autonomy but no higher and fundamental transnational principles, mandatory custom, treaty law and general principle still prevail over it.  Again this chosen local law would function in the transnational legal order and be adapted accordingly in its lex mercatoria.  A choice of a domestic law by the parties in international transactions covers therefore much less ground than people often think and operates differently as I explained in my contribution for the Liber Amicorum for Lord Bingham.

The Modern Lex Mercatoria and its Dynamism

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley] Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under "Related Posts" below. In my last post, I said that the modern transnational lex mercatoria is dynamic, does not depend on statutory or treaty law, is not statist and allows for immanent or informal law formation through the market place, therefore by the participants themselves.  That is foremost through custom and practice, in fact the normativity of all routine on which any society depends for its proper functioning. Party autonomy follows. Such a law is also built on other sources, foremost fundamental principles and its set of values, but also on general principles developed in commerce and finance in different legal systems. This has considerable consequences for our view as to how the modern law works in international commerce and finance. It is very different from the civil law codification model and its method of interpretation. I already said that in contract, good faith may thus acquire quite a different profile in business and consumer transactions. In the first it may extend protection, in the latter it may minimize it when the contractual road map and risk distribution requires a much more literal interpretation. But another key insight is that with these different participatory sources of law, the modern lex mercatoria is also likely to be dynamic and moves away from a static notion of contract and movable property law. Especially in duration contracts, it is clear e.g. that the moment of the conclusion of the contract, if it can at all be clearly determined, is not conclusive any longer of the rights and duties of the parties.  There are pre- and post-contractual rights and obligations which emerge all the time out of the behaviour and reasonable expectations of the parties. Thus conduct and reliance are here the key, not the formal mating dance of offer and acceptance. Will and intent acquire a much more objective meaning also. They are in fact often irrelevant and in any event in a corporate environment difficult to determine where the one who has the signing authority often knows little of the content, different departments are involved in the negotiation of different parts, and the text as whole may emanate from an outside law firm.  Object and purpose are then more relevant and perhaps easier to handle as more objective notions.  Cooperation and fiduciary duties, especially in situations of dependency, may further be implied.  This is the world of modern contract theory at the heart of which there is a dynamic concept of contract and of the rights and obligations thereunder and a firm distinction as to the nature of the parties, especially between professionals or consumers. This dynamic contract model is quite different from what is mostly still taught under national law in national law schools, where we still pay tribute to offer and acceptance notions, a fixed moment as of which a contract is concluded and in contract interpretation to an exalted idea of the will, often in a psychological sense. This presents an atavistic model of contracting that is entirely out of date, even domestically. The newer model, at least in the professional sphere, is based on conduct and reliance, and on a substantial degree of risk acceptance beyond the contractual risk allocation unless the result becomes manifestly unreasonable which in business will not arise soon and would have to take into account the overall position of the complaining party and not merely the situation of advantage or disadvantage under the particular contract.

Is “International Law” the Same as “Foreign Law”?

The Telegraph commits one of my pet peeves in this headline and article on the Greek Debt Crisis: Greek talks with international-law debt holders hit impasse Despite earlier this year forcing most creditors to take losses of 75pc on the debt, Athens has still to deal with its bonds which were issued under international, as opposed to domestic, law. The Greek government said...