Trakman, Leon --- "A Plural Account of the Transnational Law Merchant" [2012] UNSWLRS 19

Last Updated: 25 May 2012

A Plural Account of the Transnational Law Merchant

^{Professor Leon Trakman, Faculty of Law, University of New South Wales}

^{This paper is available for download at:}

^{http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2066267}

Citation

^{This paper was published at (2011) 2(3) Transnational Legal Theory 309–345.}

^{This paper may also be referenced as [2012] UNSWLRS 19.}

Abstract

<sup>The Law Merchant is depicted today as a transnational system based on merchant practice operating outside the fabric of national law. It is conceived as cosmopolitan in nature, universal in application, expertly delivered, and independent of other regulatory systems.

This article critiques these qualities attributed to the historical as well as present-day Law Merchant. It disputes that it has evolved ‘spontaneously’ out of merchant practice; that it is uniform in nature; and that it transcends national law. It argues instead that the Law Merchant is often fragmentary in nature and subject to disparate national and transnational influences. It challenges, in particular, unitary conceptions of ‘autonomy’ ascribed to the Law Merchant, presenting a pluralistic conception of Law Merchant ‘autonomy’ instead. It illustrates these arguments in relation to the so-called Cyberspace Law Merchant and to transnational commercial arbitration.</sup>