The thesis seeks to engage in and contribute to the debate about the new lex mercatoria. Proponents of the concept claim that a body of law is emerging beyond the boundaries of nation-states which may govern cross-border commercial transactions without geographical restraints. Opponents, however, contend that this elusive 'a-national' law does not exist and maintain that law cannot be divorced from the state. The thesis evaluates the proponents' claims that the lex mercatoria is a universal, a-national autonomous legal system developed spontaneously by merchants. In order to contribute to the debate, the thesis aims to remedy its existing deficiencies by relying on analytical arguments, opening up the discussion to other fields of the law and clarifying key issues of terminology. To complete this task, the thesis proceeds in three stages. First, it provides an overview of the debate and selects the most promising account of the lex mercatoria, which perceives it as consisting exclusively of trade usages. Second, it lays down the framework for the proposed analytical account by clarifying key terms, such as the meaning of 'trade usages'. Third, it engages in the detailed analysis of a rule of the lex mercatoria and its status as an alleged a-national legal system. This stage of the analysis opens up the discussion to public international law and jurisprudence. The thesis argues that it is necessary to adopt a paradigm-shift in our approach to 'law' if we are to grasp the notion of 'a-national' law. The potential dangers of this proposed paradigm-shift, however, are numerous and the thesis attempts to alleviate these risks. The purpose of the thesis is to steer the discourse in the direction of analytical arguments, rather than to end the debate. It proposes one way in which an analytical account of the lex mercatoria may be offered.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:568407 |
| Date | January 2011 |
| Creators | Toth, Orsolya |
| Publisher | University of Oxford |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
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