Will the Consumer Law Field be the Waterloo of the New Lex Mercatoria?
By Professor GUNNAR KARNELL
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'?"2 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