Author: Jan Dalhuisen

The Relevance of the Academic Model for the Modern Lex Mercatoria

[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. The Codification idea, the DCFR as the EU attempt at codification, the EU jurisdiction in the area of private law formation, and especially the force and meaning of the academic model in the law need to be further considered if we are to acquire a better perspective on the formation of private law at the transnational level and therefore on the modern lex mercatoria. It was already said that private law including commercial law had been thought of as being transnational until the 19^th Century especially on the European Continent.  This was confirmed by the general acceptance of the Roman law as superior customary law even though in commerce there was local law but it was not nationalistic, it was often regional or municipal and could operate cross border. The laws in the Channel ports between France and England and across the Alps between France and Italy were already mentioned. Again, the dominance of national states since the early 19^th Century changed all that. The right insight was here that law moved with society and its values. The latter had already been accepted in the natural law school which philosophy was now, however, rejected because of its universalist claims.  Instead the law was nationalized everywhere.  Moving with society soon meant on the European Continent a monopoly for national legislators. Overriding principles were out, custom was suspect.  Party autonomy depended on the license of the state. Even in England, the law was henceforth thought to issue from the sovereign (Austin), albeit still mainly through the courts. Other sources of law, custom in particular became here also of dubious value. Only in commerce its value was still acknowledged but the status in particular of international custom became unclear. In this atmosphere, it became also axiomatic that property law operated per country.  If one bicycled from Basel to Strasbourg, the bicycle went through three different legal regimes of ownership. The law of assignment was no less seen as an expression of a national culture. It seemed unnecessary if not bizarre in economic systems that were largely the same.  The codes underscored this but it is important to understand that the codification movement had two different prongs. The early codification in France (1804) was product of Enlightenment and largely a cleaning out exercise which was found to be best conducted at the level of the state. It was a question of greater transparency and efficiency and lesser transaction costs. Nationalism was not a key element and this allowed the French code to spread fast through neighbouring countries. The fact that other sources of law were eliminated was foremost pragmatic. The German Code which came about hundred years later was conceptually very different and the product of German nationalism and idealism. It claimed for the state the deeper insights in the human condition and the ability through its academies to best regulate human behaviour. Codification is here an academic model and its system acquired a mystical and irrational element.  The claim was that the result was complete, represented the reality of human relationships and had the answer in it to all questions present, past and future.  It could as such not be questioned because it was the law imposed by the state. All other sources of law were subjugated to it. They had no independent status because they were not considered legitimate without governmental recognition.

The Modern Lex Mercatoria and International Arbitration

[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. With the model of a transnational commercial and financial legal order and its own lex mercatoria in mind, it is quite easy to explain what modern international commercial arbitration is and is not, or no longer. It is denationalized or delocalised to start with. Thus the arbitration clause is separated from the rest of the contract and derives its recognition and power from this transnational order as do therefore arbitrators, whose status derives institutionally also from that order.  Indeed the separation and Kompetenz-Kompetenz principles are themselves matters of transnational law. So are the concepts of jurisdiction and arbitrability in international arbitrations, the authority of arbitrators to find the applicable law even if regulatory, and the rules of procedure and evidence. I said earlier that arbitrators act here like equity judges when developing the substance of the lex mercatoria further. The award itself is based in the transnational order also, so is its enforceability even if in the practicalities, recognition is still necessary in the states where enforcement is sought as they (for very good reasons) maintain the monopoly of enforcement powers on their territories and still want a minimum of control. The seat of the arbitration and its laws have here no longer much relevance except in aid of the international arbitration taking place on its territories unless a true public interest of the country of the seat became involved. Naturally, it should guard against a cowboy culture in arbitration on its territory or ban or dissolve any meetings in its country for public policy reasons in appropriate cases, but not much more. Injunctions could not go beyond this either. This approach is long borne out by the fact that even annulment of an award at the seat is no longer decisive in the transnational legal order and does not rule out recognition of the awards elsewhere or resumption of the same case in another country. Once the double exequatur was abolished by the New York Convention, the writing was on the wall and only those who still believe that all law emanates from states still hold to the old truths in this regard.

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.

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.

The Sources of the Modern Transnational Lex Mercatoria

[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 something about the need for and re-emergence of transnational private law in international commerce and finance. This law is immanent in principle, created by the international market place and its participants itself, where necessary supported by treaty law (like the Vienna Convention on the International Sale of Goods), and in practice formed and operating much like public international law with its different sources, as may be shown particularly in its foreign investment law branch. That is the modern lex mercatoria. It is very different therefore from the law of the codification, but similar to what prevailed earlier. It is now in its formation and operation in fact closer to the common law which is not statist per se nor systematic and academic either and less averse to other sources of law. It is more pragmatic and moves from case to case on the basis of practical needs, even if there is now also much legislation and sometimes even a kind of code, especially the uniform commercial code or UCC in the US. Whatever its name, the UCC is not, however, a codification in the European sense. It does not monopolise the field and does not push out other sources of law. Rather in its Section 1-103, the UCC makes it very clear that it promotes not only custom but also the common law, equity and the law merchant besides it. In England, the Sale of Goods Act until its reformulation in 1979 also still referred to the law merchant, even if in England its deletion in 1979 and also the narrowing approach to custom especially if international, shows that commercial law has become much more nationalistic, also in England, unwisely so in my view, but not quite as much as on the European Continent.

What do we mean by the Transnationalization of Private Law?

[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. Opinio Juris has not so far dealt with matters of private law and its transnationalization, harmonization or unification, especially important at the operational level in international commerce and finance.  If it is true that the international flows in goods, services and money now far exceed the GDP of even the largest countries, then the question must be asked why it is that in the orthodox view, these international flows must still be controlled and covered by a national law, which is then found under the canons of what is called private international law or conflicts of law. It is not logical but it is the consequence of the 19^th Century view that all law was the product of a national culture and that there was no law beyond it. Even common law countries fell for this. In civil law countries this led to the further idea that this law, even private law, would issue from government, hence the codifications. It allowed at the same time an academic systematic approach to dominate and led on the whole to a severe form of legal formalism based on a systemic interpretation of these texts which were considered to be complete by themselves and covering all eventualities. In particular, codification of this nature was suspicious of and left not much room for other sources of law, like custom and practices, general principles (except if underlying these codes) or even party autonomy.  They could only operate by license of these codes. Even fundamental principle or newly established social values were no source of law except when these codes referred to them or expressed them. There were no values or rationality beyond them. This also captured commerce, even when international, and it had to conform to these national legal systems. It followed that international transactions were legally pulled apart.