Will the Consumer Law Field be the Waterloo of the New Lex Mercatoria?




Some two years ago, Professor Clive Schmitthoff expressed the opinion that "The emergence of an autonomous law of international trade is one of the most significant legal reactions to the changing social and economic conditions of the world". He said this at a symposium, arranged by the university of the small Danish town of Aarhus on the occasion of its celebrating its 50th anniversary. The subject for his address was "The legal organisation of commerce and its relation to the social conditions".1
    For a couple of years we have witnessed a progressively more comprehensive discussion in the literature on international commercial law about this "autonomous law of international trade". It has been called "a new Lex Mercatoria" and the notion has become recognized in legal language in various forms and with different sets of reservations attached to it. Indeed, at the big Congress which was held in Rome in 1976 by the International Institute for the Unification of Private Law (UNIDROIT) with the theme "New Directions in International Trade Law", and which gathered many of the foremost experts on international trade law, the first subject for debate was "The Law of International Trade: A New Task for International Legislators or a New 'Lex Mercatoria'?"The first rapporteur on the subject was the eminent French legal scholar Professor René David, who together with Professor Schmitthoff has probably contributed more than anyone else to the talk about a new Lex Mercatoria in the world of international trade law. The subject of the Rome Congress for the debate suggested that this new Lex Mercatoria, this "autonomous law of international trade", to return to Professor Schmitthoffs expression for it, could be contrasted with the doings of national legislatures as a realistic alternative for the development of international trade law. The fundamental question of the debate in Rome was formulated thus by Professor David: "Should the law of international trade be formulated by state authorities, and will it be so, which within the limits of various national states or by common understanding between authorities of many national states discern the appropriate rules for the needs of the specific international trade relations or will we see developing a new Lex Mercatoria of an international character, autonomous by means of usage and customs of business practice, and thereby of arbitrational jurisdictions independent of state authority?"3


1 "The Legal Organization of Commerce and its Relation to the Social Conditions", Symposium arranged by the Faculty of Social Sciences, September, 21.-23. 1978, Aarhus Universitet, Aarhus 1979, pp. 16 et seq.

2 See "New Directions in International Trade Law", Acts and Proceedings of the 2nd Congress on Private Law held by the International Institute for the Unification of Private Law, UNIDROIT, Rome, 9-15 September 1976, Dobbs Ferry, N. Y., 1977, Vol. I pp. 5 et seq, Vol. II pp. 437 et seq.

3 "New Directions ..." (note 2) Vol. I p. 5.

428 Gunnar Karnell    In my opinion, there will be progressively less and less meaning behind the concept of a new Lex Mercatoria. This opinion is shared by others who have sought to analyze the substance of the talk about a new Lex Mercatoria.4 But I shall here emphasize reasons other than those usually advanced in discussions about the room for and the effects of such a body of law.
    Among the objections usually raised against the realism of the notion you will not yet frequently find such objections as lay weight upon the importance of the consumer protection wind which blows over the world of today and to which the organs of international law really have not begun to react until these very last years. As concerns international law, it is by far more common to say that consumer protection was always there as part of the background, that what is of importance for international trade are other national undertakings than development of consumer protection, and that agreements entered into across national borders will only to a very limited extent have consumers as parties to them or touch upon consumer interests.
    I shall here confront the two legal tendencies of development with each other, the claim of the new Lex Mercatoria to develop into an autonomous law of international trade, on the one hand, and a number of fundamental elements of consumer law in its development nationally and internationally, on the other. I shall paint with rather broad strokes of the brush, omitting many reservations necessary to make the picture true in every detail.
    Professor Schmitthoff said in Aarhus about the new Lex Mercatoria that it would be one of "the most important innovations in modern commercial law" and that "The recognition that we are experiencing the admittedly slow growth of a truly international law of international trade has led to a division of commercial law into a branch which deals with home transactions and is dominated by the requirements of consumer protection, and a branch which provides the framework for international business transactions and aims at conflict avoidance through international harmonisation and unification".5
    My thesis is that this autonomy of international law will, as a result of the nationally based demands for consumer protection, by and by lose more and more of its commercial integrity. To the extent that talk about the new Lex Mercatoria has been founded upon reality, there will by degrees be less and less to keep the notion together because and to the extent the international legal sphere must be adapted to the pressure of fundamental forces of consumer law.
    Let us, however, first look at what constitutes the underpinnings for discussion of the notion of an autonomous law of international trade. The old Lex Mercatoria is an appropriate starting point.
    It formed, most nearly, a Lex Mercatorum, a medieval body of law between merchants, developed by themselves in customs of trade, rather than a Lex Mercatoria, or law of markets. Important legal rules, which are still in use, have their origin in this body of law, for example rules on bills of exchange,


4 The conflicting opinions have very clearly been brought to bear upon one another in an article by Professor M. J. Bonell in Rabels Zeitschrift für ausländisches und internationales Privatrecht 1978 pp. 485 et seq with ample references (Engl. summary pp. 505 et seq).

5 "The Legal Organization . . ." (note 1) pp. 16 et seq.

The New Lex Mercatoria 429documentary credit agreements and bills of lading. The rules were formed by merchants who had been accorded commercial privileges and they were thus formed while there was no governmental authority which was strong enough to adapt the law of the then existing static and principally agricultural society to the contemporaneously growing problems of world trade by working out a new legal system for it. A prerequisite for the development of the rules of a Lex Mercatoria, largely independent of state influence, was thus the inability or inadequacy of government.
    Room for an autonomous trade law development in our time would not derive from any lack of state power over legal developments. What may then give factual support for talk about an autonomy of the law of international trade?
    From the point of view purely of legal genetics or legal sociology it is not difficult to point at the considerable similarities between the fundamental legal rules which may be found within the law of external trade in various parts of the world, and this to a large extent independent of whether we look to countries of planned economy, such as Russia or Poland, or to other countries, e.g. Sweden. Specialists in trade law seem in many respects to speak a rather "common language". The medieval Lex Mercatoria developed "from usage and practice in an unpremeditated and almost haphazard manner until it became generally accepted customary law". Those who give the most realistic expressions for what a new Lex Mercatoria is, usually point out how the "common language" of international law in the shape of general principles of law for international trade have, during this century and notleast during the last 30 years, been developed by "formulating agencies". As such may be mentioned the United Nations Commission on International Trade Law (UNCITRAL), the UNIDROIT or the Hague Conference on Private International Law among those which are directly dependent uponstate support. Among the more independent organizations with an international activity may be mentioned the International Chamber of Commerce (ICC) and the ORGALIME (Organisme de Liaison des Industries Métalliques Européennes). It is said that this development of law is to be looked upon as "one of the most significant legal reactions to the changing social and economic conditions of the world" meant to correct to some extent the effect of nationalism and intending to give the expounded rules a supranational effect, although it thus derives this effect in the last resort from national sovereigntyas exercised by the governments which render support to the development of commercial law through these formulating agencies I have just mentioned.6
    When talking about the legal freedom of international trade, it is customary to mention international arbitration as one of its foremost pillars of support. It is indisputable that states have contributed to a very considerable extent to rendering international arbitration more effective as a free instrument for the parties to a conflict. It may here suffice to direct attention to UNCITRAL's arbitration rules of 1976, which give the parties who agree upon their applicability an appointing procedure which is comparatively easy to handle and a form for proceedings which may be regarded as in essentials quite satisfac-


6 All quotations in this paragraph are from Schmitthoff in "The Legal Organization . . ." (note 1) pp. 18 et seq.

430 Gunnar Karnelltory.7 States have also, within the framework of the UN, significantly contributed to making arbitral awards effective by elaborating and becoming parties to the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards.
    State achievements however, have not, generally speaking, been directed to making the result of international trade law supranational and autonomous as substantive law. As a matter of fact the claims of commerce and industry to arrange these things for themselves in the field of international trade have during the last years come to appear more and more unrealistic. It is not inconsistent with this view that up till today the international endeavour of many states has been to support and to take part in work on many fronts to free international agreements from dependence upon mandatory national rules which are primarily intended for the national conditions of the specific countries. Special expressions for this endeavour may be seen in the Codes of international trade promulgated in, for example, Czechoslovakia, or the German Democratic Republic. The organizations of commerce have also striven to win state recognition in the form of conventions and model laws via formulating agencies and they have sought to gain authority by standard agreements and by individual agreements related to, for example, such ethical standards as have been elaborated through the ICC.
    We may, however, in my view, now be at a turning point, where the claims of international trade to be protected against national tendencies more and more will have to give way as the national/social function of legal relations will more and more be given an advantage over their international/economicones. This development is not a welfare phenomenon in industrialized countries only. It is a matter of global pressure upon conceptions of the freedom of international trade to which one has become habituated.
    The foundation for this development lies in the old and well known state of affairs that international trade, in spite of everything which has been pointed to, nevertheless is to such a considerable extent legally dependent upon rules of traditional private international law in the sense of choice of law rules and the like. Neither self-adjustment within the organs of various branches of international trade, nor the relatively free sector for arbitration, nor the parties' freedom to choose a particular country's law to be applied to their disputes concerning agreements, gives any persuasive force to expressions like "the contracts make the law of the parties"8, so long as national law must be relied upon to give effect by means of execution to what follows from the rule of law on which the decision which is being enforced rests. In other words, so long as a party may put itself under the rules of a national legal system to escape its contractual obligations, it will be fictitious to say that these obligations are the result of an autonomous, supranational body of law. Even if the obligations are observed in 99 % of the cases, this nonetheless does not change anything. A rule's character as a legal rule does not depend upon whether it


7 The UNCITRAL Arbitration Rules have been published in Yearbook Commercial Arbitration Vol. II 1977, Deventer 1977, pp. 161 et seq, with an elaborate commentary by Professor Pieter Sanders pp. 172 et seq.

8 "C'est un principe généralement admis, dans les droits modernes, que 'les contrats font la loi des parties'", David in "New Directions . . ." (note 2) Vol. I p. 11.

The New Lex Mercatoria 431describes a common behaviour but upon whether its observance can been forced, conceivably just because it describes a common behaviour, but nonetheless according to a rule that enforcement shall occur. And that rule is, in the circumstances which are here of interest, based on state determination.
    But diverse rules for international trade are themselves evidence of states stepping back or not interfering. In the field of substantive rules could be mentioned as examples the ICC Uniform Customs and Practices and Uniform Rules for the Collection of Commercial Paper, replaced in January 1979 by the new Uniform Rules for Collections, as perhaps also the 1978 Uniform Rules for Tender, Performance and Repayment Guarantees-Contract Guarantees. Furthermore, even if the validity of the norms international trade may employ for a specific kind of trade relationship depends upon national law, it may, with some justification, be asserted that states often consent to fill in the rule picture as presented by an agreement from out of the tacit assumptions the picture itself supplies, instead of imposing national conceptions from within the state whose law nevertheless reposes over the party-relationship. But not even the ICC International Rules for the Interpretation of Trade Terms (the Incoterms), which are widely accepted and of great significance for world trade, are given the same effect in all western countries. That effect may depend upon an interpretation of domestic principles of law and on the flexibility allowed by domestic legal institutions.

    Within the doctrines of private international law, claims-which sometimes are acceded to-are now raised that international relations should not only be treated in a separate way within a certain legal system (as in cases where countries have specific codes for international trade) but also that national law should take into consideration the law of several countries whose laws are connected to the same agreement, in order better to satisfy the autonomy interest by liberating international trade from purely national considerations. In this lies a demand that national courts should behave more as courts of arbitration may, in choosing rules applicable to international agreements. There are also, in fact, quite a few examples of courts choosing to act in this way, regulating pure international fact situations not by one or the other national law but rather by special rules which seem to be compatible with the law of all states directly interested in how the present case may be settled. All this is however something which can only be accomplished on a case to case basis and under the so-to-speak social control established by the fact that the trial of the case is performed within a specific legal system. This is true also as concerns, for example, the European Court of the Common Market with its fully conscious approach to serve with its decisions only a common market.9
    Most agreements in international trade today are built upon a conception of the value of being able to determine by agreement a certain legal system asapplicable to the agreement. The choice will, however, only whole sale determine which substantive law will be applied to the agreement.10 The law in detail will be determined by the chosen legal system with its developing mandatory rules.


9 See Bonell (note 4) pp. 496 et seq.

10 Cf Popescu, T. R., in "New Directions . . ." (note 2) Vol. I pp. 31 et seq. The possibly disastrous effects of contractual references to "general principles of law" or to the laws of both parties are brought to readers' attention by Dr. J. Gillis Wetter in "The International Arbitral Process", Vol. III, Dobbs Ferry, N. Y., 1979, p. 458, also in Svensk Juristtidning 1979 p. 47.

432 Gunnar Karnell    International trade is barely served by nationally or regionally effective solutions on a case to case basis, for example concerning which rules will determine whether a suggested rule expresses a trade custom or is instead only part of a complex of standard conditions in which latter case special national legal rules will decide whether the conditions have at all become part of the parties' agreements.
    By and large, the claims for autonomy and supranationality of the new Lex Mercatoria are claims for protection of international trade against national protective tendencies centered upon, generally speaking, the social function of the legal relationship.
    Diverse agreements within the domain of international trade may seem to be untouched by such protective tendencies. As examples may be mentioned agreements between enterprises and states for support of industrial development and on international raw materials trade. This is clearly true, even if for example a 1979 document of the United Nations Economic and Social Council on consumer protection for developing countries among tentative options for action at the national level mentions adopting a specific policy for improving the distribution system for essential consumer goods and services in ruralareas.11 Such national policy may naturally have mandatory repercussions upon the interpretation of agreements for the support of industrial development etc. Lots of contractual provisions and related trade customs for various kinds of agreements in various sectors of international trade are also of such acharacter that they do not touch upon questions of any social importance in countries whose law may be applied to the agreement. It is however then to a large extent a question of parts of agreements, where other parts have at leasta certain social significance or can be affected by national considerations either within the same or a different level in the chain of contracts, depending on which route the goods take from one such level to another.
    It is also quite clear that different agreements can be said to stand over all of what consumer protection comprises. Without doubt, different rules are required for the sale of mechanical equipment for industry and for the sale of a perambulator for consumer use.
    Now consumer protection has a common trait wherever it appears, the result of which is that much international trade negotiation will be affected by increased governmental patterns of putting consumer protection into rules of substantive and procedural law. I believe that this trait will by and by break up the unitariness in viewing the liberty of trade which is required to sustain an idea such as that of an autonomous or supranational new Lex Mercatoria.
    The common trait which I have in mind is that consumer protection by definition is centered upon the last step in a multiplicity of goods-and service distribution steps and that those engaged in this last step are on the one hand the party to be protected, the consumer, and on the other hand an operator ofa business, to whom the law does not give the same protection in relation to those with whom he contracts in order to be able to contract with the consumer. This necessarily implies that from the rules of consumer protection emanates a pressure so to speak upwards within and outward from the national legal system which establishes the consumer protection. States will not overall let the consumer pay the legal cost upwards and outwards for


11 "Consumer Protection", Doc. E/1979/65, 14 May 1979, p. 14 no 45.

The New Lex Mercatoria 433consumer protection. At least considerable parts of the obligations caused by consumer protection must be shifted into the direction mentioned, that is, upwards and outwards. Earlier links of the chain of distribution must for instance be reached by the effect of a price freeze at the retail level. It will become more and more difficult world-wide to keep consumer law and applicable norms of the trade apart. To achieve this would require enormous strides in international law-and-contract-harmonization having precisely that purpose. It would further require a split-up in the rules concerning international trade into rules covering what is or may become consumer goods, on the one hand, and other goods, on the other hand. There are such attempts, e.g. in the form of the Hague Convention on the law applicable to certain consumer sales, in its preliminary draft of 29 June 1979. Tendencies towards such a split-up admittedly also exist in standard conditions for international trade in consumer goods, e.g. the ECE 730-conditions, but the adaptation to national consumer law is pretty bad or nonexistent.12
    As things now stand, the internationally aimed attempts to catch up with consumer law are disparate and in various respects rather fumbling.13 There is, however, a broad, somewhat hurried trend at the international political top level to engage forces upon the field of whatever may be called consumer protection.14 Various strategies and tactics have been developed in national law in order to render political credibility to attempts which are not seldom rather diffuse or more or less conditioned by vague elements of social ideology. The name "consumer protection legislation" is nowadays given to many pieces of legislation which even 10 to 15 years ago would have been given much less unifying expressions. It is not uncommon to find that what was then called law on the environment is now called consumer law. Internationally consumer law, admittedly, is to a not insignificant extent built upon legal standards to whose establishment trade has contributed. As an example may be mentioned the support given to self-regulation for many years by the ICC, but the rules of law are, nevertheless, national and may to a certain extent belooked upon as a kind of indirect trade barriers, which, moreover, by disturbing long production runs for the international market may perhaps not


12 General Conditions of Sale for the Import and Export of Durable Consumer Goods and of other Engineering Stock Articles, Prepared under the auspices of the United Nations Economic Commission for Europe, Geneva, March 1961.

13 As a grossly notorius example of the last-mentioned kind may be indicated the Draft memorandum prepared by the International Bureau of the World Intellectual Property Organization (WIPO) for the First Session, Jan. 14-17, 1980, of a Working Group on Industrial Property Aspects of Consumer Protection (COPR/II/2, Nov. 14, 1979); cf. the Draft report prepared by the Secretariat, COPR/II/3, Jan. 17, 1980.

14 As regards the United Nations Economic and Social Council, see the Report of the Administrative Committee on Co-ordination "Activities of the United Nations System Related to Consumer Protection", Doc. E/5996, 20 June 1977, and the Reports of the Secretary-General "Consumer Protection: A Survey of Institutional Arrangements and Legal Measures", Doc E/1978/81, 8 June 1978 and "Consumer Protection" (note 11). See also the "Action programme of the European Communities with regard to consumers", Bulletin of the European Communities Supplement 4/79 (Communication from the Commission to the Council presented on 27 June 1979) as well as Council of Europe, Consultative Assembly, Resolution 543 (of 17 May 1973) on a Consumer Protection Charter and Resolution (76) 47 "Unfair Terms in Consumer Contracts and an appropriate Method ofControl", 16 Nov. 1976, by the Committee of Ministers of the Council of Europe.


28-13-166-67 Sv. Juristtidning

434 Gunnar Karnellprovide such great benefit to consumers. This notion may apply to safety marking following government testing of products for sale to consumers, or what may lie behind information that when a certain foreign car model was forbidden on the Swedish market this was due to the car's failure to meet a requirement stipulated for, as it was said, traffic safety reasons, that it should be able to go backwards with a certain speed, while keeping its course. According to the same source the foreign country then forbade a small, corresponding model of a Swedish car on the foreign market making the excuse that the steering wheel of a car should be situated at a certain distance from the side window in order to comply with the foreign country's traffic safety regulations, a requirement which only the Swedish car model of all the cars on the foreign market failed to satisfy.
    National consumer protection legislation is developing as mandatory law for the last step in chains of distribution of goods and this happens on the basis of, largely, entirely other considerations than those which have to do with internationally established ethics for trade between business enterprises. By its influence upon a Swedish merchant's agreement with Swedish consumers the Swedish regulation on conditions in consumer contracts will have repercussions upon the reassurances which the Swedish merchant must seek to get in his agreements with his suppliers and his manufacturers. This also goes for the rules on consumer sales, which have in Sweden been made the subject of a specific statute.15 These rules have for instance led to the result that earlier manufacturers' guarantees, directed to consumers, have been replaced by sellers' guarantees with effects back up on the chain of contracting parties. The Swedish seller must reassure himself backwards for the consumer protection which the law requires him to give. As an example of another kind of need for reassurance, may be mentioned the risk of a nationally negative outcome of comparative testing of products, e.g. in T.V. programs sponsoredby state consumer protecting agencies, against which an importer may need to protect himself in his import contract with his foreign seller as though there was actually a question of the goods being defective.
    The Supreme Court of Sweden has, as a consumer protection measure, stated in a case where a consumer had suffered personal injury from a product (hair curlers), which had been manufactured abroad and where the manufacturer had been negligent, that it would no longer as before be necessary that also the importer, to be liable, had been shown to be negligent. The importer was held responsible anyhow, as there was a strict liability which would only be set aside in case of proof that the manufacturer had not been negligent.16Making the importer bear the liability for the producer's negligence will of course not lead to any so unrealistic results as the importer being provided with inside information on the procedure of manufacturing from which he can show that the producer was not negligent. Instead, the agreement between producer and importer will have to be adapted so that the strict liability canbe shifted backwards to the producer, to the extent that it cannot be covered by insurance.


15 For a general survey of Swedish Consumer Law, see Bernitz, U., "Consumer Protection: Aims, Methods and Trends in Swedish Consumer Law" in Scandinavian Studies in Law, Vol. 20, Stockholm 1976, pp. 11 et seq.

16 Nytt Juridiskt Arkiv I 1977 pp. 538 et seq.

The New Lex Mercatoria 435    Contractual provisions of international trade are not written with consumer relations in view. In the United Nations Convention on Contracts for the International Sale of Goods, adopted by the United Nations Conference on Contracts for the International Sale of Goods in Vienna on 10 April 1980, it is stipulated that "This convention does not apply to sales of goods bought for personal, family or household use, unless the seller at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use" (art. 2). Consumer viewpoints were not taken into consideration during the elaboration of the convention. Still such rules as are contained in the convention are the ones which are supposed to take care of claims based on consumer protection against one party of the relationship, in balance between the one who sold to the consumer and this seller's supplier. If the balance between the seller's and the supplier's right in a certain respect would, because of a condition between them, effect that, if the condition was carried further on into the agreement with the consumer, the consumer agreement would in its entirety be to the disadvantage of the consumer, then the conditions of the consumer agreement would satisfy the notion of unfairness which is given by the Committee of Ministers of the Council of Europe in its resolution or 1976 on Unfair Terms in Consumer Contracts and an appropriate Method of Control.17
    Concepts like "unfair" and "misleading" are legal characteristics of consumer protection statutory language in various countries which contribute in my view to making talk about an autonomous and supranational trade law progressively less significant. Consumer law is to a considerable extent resultoriented. The legal rules are pointed to their effects. As an example may be mentioned that the consumer must not be misled, that he should be well informed, that contract terms must not be unfair with reference to the situation in general or with reference to the inferior position of the consumer party to the agreement. The essential factual content of many protection statutes is thus more and more often characterized by a lack of a minute listing of precise preconditions for well defined legal consequences. Rules of great importance for agreements used by business enterprises are construed so that it cannot be objectively evaluated if judicial decisions based upon them are right or not. The content of an international license agreement about the right to use a certain trademark in a specific country where it clearly does not infringe upon the statutorily well-defined rights of any other industrial property right holder cannot be left uninfluenced by the risk that the trademark may be considered to be misleading from the consumer point of view and that its use may therefore be forbidden by some national consumer protection organ.
    The interest of consumer protection goes moreover hand in hand with development of national general clauses directed to protect the weaker party. This development causes some embarrassment to business and industry. Like result orientation, it creates an unforeseeability concerning what may follow from mandatory national law when it becomes applicable.
    The effects of consumer law in this respect can be illustrated by a recently adjudicated case in the Swedish Supreme Court about a clause exonerating a seller from liability for indirect damages in standardized general conditions of


17 See note 14 in fine.

436 Gunnar Karnellsale, worded almost exactly like the worldknown ECE 188 conditions.18 In this case the conditions were used in an agreement between a big and a small company. The Supreme Court first stated that the mandatory rules about consumer sales did not give to consumers as buyers the right taken away by the clause, and then found that because the clause in consequence was not improper or unfair even in consumer relations, strong reasons were required for the clause to appear improper or unfair as applied between business enterprises. With regard to the total picture of the contract relations, no lopsidedness would arise within the said relation if the clause was accepted. Here appears very clearly how little autonomous also such a portion of trade law may be as the one founded on the general conditions of sale of the United Nations Economic Commission for Europe and then in relation between an enterprise and its business customer. It is also apparent how it suffices forsuch an instance of one party being weaker than the other that one company is small in relation to the other (in the concrete case, the difference in turnover between the companies was between 1,000,000 and 100,000,000 Swedish Crowns) for the autonomy to be brought to a test against rules of consumer law.
    Also the consumer protection based objective to give by means of the legal system to a weaker party the strength which it has not been able to show in negotiating its agreement, tends to give to supplementing national legal rules a content which in the long run cannot leave international trade law unaffected. If a national statute on sales aimed at all kinds of sales and not only at consumer sales is set to give rules protecting the weaker party, then that statute could not give clear directives for the parties to act upon, requiring them to accept the rules as elements of their agreement, or to agree otherwise. Such rules must, in fact, be balanced in their demands upon seller or buyer, but weaker may be either the one party or the other in various cases and in various respects. If a weaker party is to be given a liberation of responsibility in relations to its partner, then this must be done by other means than by generally aimed contract-supplementing rules. Here then the rules on reasonableness come into the picture. And here we see how the protection of the weaker can dissolve the basis for finding support in national law for a standardization of autonomous and supranational rules for international trade. Consumer protection and current efforts to protect the weaker party within national legal systems dissolve the possibilities to determine in advanceand to find support in national law for a forseeability as to the effects of international contracting. To the extent that a country's general rules on sales are imprinted with an ideology of protection for the weaker party, this ingeneral means insecurity about the outcome of the use of traditional general conditions and standard contracts.
    If then arbitration clauses in consumer contracts are generally invalidated, as it has occurred in Sweden in the domain of building contracts, this can mean that standard conditions, which are in national use and which may have strong international connections, will be given a national interpretation by


18 General Conditions for the supply of Plant and Machinery for export. Prepared under the auspices of the United Nations Economic Commission for Europe, Geneva. March 1953; Nytt Juridiskt Arkiv I 1979 pp. 483 et seq.

The New Lex Mercatoria 437ordinary courts with a distinct added touch of consumer protection.19 It will then at least be very urgent to require that these courts openly declare to what extent they have let those thoughts, as related to otherwise internationally used trade conditions, be guided by purely national considerations aimed at consumer protection. Otherwise, there will be a considerable risk of an unintentional breaking up of the whole picture of terms of trade for businessand industry, both nationally and internationally. Contracts between companies must take into consideration (or carry the risk of) what happens to the business enterprise party which confronts the consumer protection aspects in its negotiations.
    When now the fieldmarshals of the new Lex Mercatoria set their binoculars to their eyes and see at the horizon a cloud of dust approaching, as Napoleon I could watch the advance of Blücher, is what they then see only the cooled ashes of an eruption of consumer protection out of the Crater of Law or does the cloud contain invincible national armies of protectors of the weak, protectionists with a "C" on their sleeves and with their eyes set upon Versailles? The Lex Mercatoria returned for more than 100 days, some 20 years in effect; is it now time for its Guard to reflect upon whether to surrender or not?


19 The fundamental court ruling is a decision by the Market Court in the case Consumer Ombudsman v. AB Skånska Cementgjuteriet, 1979 no. 17.

   A tendency to base court decisions concerning arbitration clauses on elaborate meditations about a party's possible "weakness" or "inferior position" is clearly perceptible in Swedish law. The Swedish Supreme Court has thus declared invalid a per se not unfair arbitration clause in a contract between a designer for his business and abusiness company which supplied aluminium profiles for production of the designer's lighting fittings by his enterprise, Nytt Juridiskt Arkiv I 1979 pp. 666 et seq. An arbitration clause in a contract between a building firm and a transport enterprise was later upheld by the Court, stating among other reasons that the case showed that the transport enterprise contesting the arbitration clause had not been in an inferior position in its relation to the building firm, Nytt Juridiskt Arkiv I 1980 pp. 46 et seq.