Chapter 20: Lex Mercatoria as Transnational Commercial Law: Is the Lex Mercatoria Preferentially for the ‘Mercatocracy’?
1 Adaora Okwor* Introduction As traditional boundaries collapse and the globe shrinks, countries are no longer as discrete as they once were. During the last century, all manner of universal co-operation among private institutions, governments and businesses have been necessitated both by technological advancement and other effects of globalisation. However, increasingly, the traditional conflicts of laws rules and public international law demonstrate their inadequacies in effectively dealing with the different kinds of challenges which globalization presents. Consequently, the lex mercatoria has been controversially publicized as a viable option to these other traditional legal systems: ‘the most successful example of global law without a state’?2 The mercatocracy, described as an elite association engaged in the unification and globalisation of transnational merchant law, exercises a predominant influence ‘as the organic intellectuals of the transnational capitalist class’.3 This assertion appears to expose a crisis of representation and legitimacy. The crisis is in the presumption that if the lex mercatoria truly is global law and therefore applies transnationally, should it be preferentially elite in its creation and origin? Surely, this lex mercatoria would be unlike the medieval lex mercatoria which originated from merchants generally and regulated their commerce irrespective * Formerly of University of Liverpool, UK. Cutler, CA, Private Power and Global Authority, Cambridge Studies in International Relations, (Cambridge, Cambridge University Press, 2003), 5. 2 Teubner, G, ‘Global Bukowina: Legal Pluralism in the World- Society’ in Teubner, G (ed.), Global Law Without a State (Dartmouth, 1996), 1. 3 Cutler, supra n. 1 at 181....
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