You already recently rated this dissertation. Drobnig highlights the relevance of general principles in their role of filling the gaps existing within the various individual pieces of unified contract law. The logical question is what is happening? This means that the legal effects are foreseeable for any of the parties. Perhaps they believed that it would become just an aphorism without practical consequences. Steindorff, Ernst – Contribution, in:

The Autonomous Perspective 5. However, negotiations failed and no agreement took place. What is important for the purpose of this thesis is to know, firstly, whether customs and practices of merchants were, in fact, applied as distinct from the law of the town. In the second part, I will focus on the capability of Lex Mercatoria to behave as a proper law. In a recent case that came before the Federal Supreme Court45 a claimant sought to have an arbitral award declared enforceable, which would oblige the respondent to pay damages. Formulating agencies and intergovernmental organizations — such as UNIDROIT — have made excellent compilations of important segments of the lex mercatoria.

In fact, several conventions do not reflect the plwce mercatoria. The community of lex mercatoria supporters that consists of Goldman, Schmitthoff, Berger, Lando and Gaillard, brings forward several arguments detaching lex mercatoria from the discussion on whether a substantive law is needed. As a first requirement, the practice should really be a practice.

dissertation la place de la lexmercatoria

The principle of good faith has been fundamental in all these manifestations. The second domain of comparative law, i.


They must be performed in diesertation faith. This lex mercatoria is regarded as having possessed certain uniformity in its essential features; first of all, it was mainly based on custom. The publication of arbitral awards constitutes an invaluable way to know the lex mercatoria.


dissertation la place de la lexmercatoria

On the other hand, dissergation are factual patterns of behaviour that are generally followed, are quite certain and have been in existence for some time.

Chapter Six draws together the research answering the research questions proposed in the introduction and offering concluding remarks.

La lex mercatoria constitue-t-elle un ordre juridique efficace ?

Farnsworth considers the following relevant norms of the Uniform Commercial Code to show his view on the subject: Furthermore, this chapter provides an analysis of the literature on the lex mercatoria — the field in which this thesis is developed. Here, these phases are combined in the same discussion and are not dealt with as watertight compartments. In cases where the practice is only limited to the business between two parties, it would djssertation fulfil this requirement.

Despite this background, the Code, in fact, came to establish the primacy of the statute and rejected all express reference to natural law. International Monetary Fund Ind. In the same way, from particular norms ;lace is not possible to obtain lexmeecatoria knowledge of such principles, which in their generality would overcome every particular application. It followed that the unfairness of the bargain was irrelevant. This is usually explained by the presence of the subjective classical doctrines of freedom and sanctity of contract in the nineteenth century.

Duvrovnik Lectures Oceana, New York During the Revolution natural law was also constantly invoked to justify new rules and new systems. However, the biggest lexmercatorix of this approach lies in the lacking evidence of a dissertatoon practice consuetudo lunga and of the opinio iuris at the global level. In other words, the supplementary role of the lex mercatoria is accepted.


It also sheds light on the reasons for the current understanding.

Institutionalization of Lex Mercatoria: the key to a predictable legal framework

Secondly, it is also important to establish if there was uniformity on underlying principles, especially on good faith. However, it suffers from lexmegcatoria flaws.

Is It Autonomous or Positivist? Every contract or duty within the Uniform Commercial Code imposes an obligation of good faith in its performance and enforcement. For a debate about what does it mean to be a jusnaturalist today, see: However, this reality would evolve over the years.

They have been made by private institutions and, therefore, are not binding over the parties. In addition to the provisions in the foregoing articles, the guidelines, customs, and principles of international commercial law as well as commercial usage and practices generally accepted shall apply in order to discharge the requirements of justice and equity in the particular case.

Instructions are not reasonable if on demand indemnity for expenses is not forthcoming. This is the fundamental question of this project. The big question hitherto is how the magistrate determined what the parties had to do to perform according to good faith. The case was conducted before the Italian Arbitration Dissertxtion in Florence.