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4 EJCCL 1 (2012)

handle is hein.journals/ejccl4 and id is 1 raw text is: Mary Sabina Peters and Manu Kumar LEADING ARTICLE Are the Principles of European Contract Law an Autonomous Lex Mercatoria, or are They Part of Universal Lex Mercatoria? 1. Introduction The ancient mercantile community was the generator of commercial law, and the same community has continued to develop present day mercantile law. Development of one uniform and universal mercantile law is possible through the contractual practices of the mercantile community, through the common under- standing and customs on which they are based, and through regulations from self-governing trade associa- tions and the decisions from arbitration tribunals to which their disputes are submitted.' The universality of international commercial law can be identified from a variety of reasons throughout the world. These contractual practices, understandings and customs, regulations and decisions constitute a body of customary law which is the foundation on which national and international commercial legislation has been and continues to be built. Based on historic development and the present day definition, lex mercatoria can be characterised as transnational. In the absence of a 'world legislator', international trade has developed very functional and sophisticated rules based on practice and persuasive value.2 Renaissance of the lex mercatoria and its arising power in the 20th century is modern commercial life's answer on the needs of international business transactions.3 With reliance on lex mercatoria clauses, contracting parties have the chance to overcome language barriers and all kinds of biases, and can draw from solid experience in their special field of business. A large part of world trade is transacted on the basis of standard contract conditions issued by trade associa- tions. Foreign trade contracts usually provide for submission of any dispute to arbitration, often under rules of a trade association or of the International Chamber of Commerce (ICC). International conven- tions and the international treaties (UNCITRAL, which has made Model Laws and Legal Guides for numerous types of contract) represent a process of unification and codification of the law of international commercial transactions - a new lex mercatoria. This approach is most clearly represented with the Uniform Law on International Sales (Hague Conven- tion 1964), the 1980 United Nations Convention on Contract for the International Sale of Goods (Vienna Sales Convention), the Uniform Customs and Practice for Documentary Credits (UCP 600, ICC l.r. 2006), the Incoterms (ICC, l.r. 2000), the UN Convention on the Recognition and Enforcement of Foreign Arbitral European Journal of Commercial Contract Law 2012-1 Awards (New York Convention 1958) and other significant codification. Despite wide and strong differences among national le- gal systems and between separate legal areas (common law and civil law), merchants and enterprises from all countries have developed a high degree of uniformity in their commercial contract practices. These contract practices and international business transactions are generally protected by the contract law of each country as well as by international conventions and private international law. There are many devices related to allocation risks in the export and import of goods that are generally understood by trading enterprises throughout the world. International trade terms relating to allocation of risks of loss or damage to goods (Incoterms), clauses in bills of lading, in marine insurance policies and certificates, clauses in letters of credit, arbitration clauses, etc., are commonly accepted in modern merchant communities and governed by similar legal rules in almost all countries.' Internation- ally, universality and uniformity are the primary features of international contract practice, and such general similarities of practice and contract law are due in part to common commercial needs shared by all who participate in international business transactions. Compared with domestic trade, foreign trade usually requires the carriage of goods over relatively long distances, often by sea, and involves a number of parties located in different countries. Foreign trade transactions are also often large-scale transactions and raise the possibility of a suit in a foreign court or Mary Sabina Peters is at the faculty of Law at University of Petroleum and Energy Studies, Dehradhun (India), specialising in the field of oil and gas laws. Manu Kumar is at the faculty of Research Methodology at Amity University, Noida (India). 1. A. Boggianno, International Standard Contracts - The Price of Fairness, Dordrecht/Boston: Kluwer Academic Publishers 1990. 2. Ibid. 3. L. Barnard, 'Choice of Law in International Contracts -The Objective Proper Law Reconsidered', New Zealand Business Law Quarterly 1996-2, pp. 27, 30. 4. See P. Mazzacano, 'The Lex Mercantoria As Autonomous Law', CLPE Research Paper 29/2008, Vol. 04 No. 06 (2008); Uniform Customs and Practice for Documentary Credits (UCP), which are legislated by International Chamber of Commerce (Paris) - last revision 2006. 5. See R.M. Goode, 'Usage and Its Reception in Transnational Commercial Law', Intl & Comp. L.Q. (46) 1997, p. 1.

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