Exploring the Interrelationships of Transnational Commercial Law, the New Lex Mercatoria and International Commercial Arbitration
![handle is hein.journals/afjincol10 and id is 41 raw text is: EXPLORING THE INTERRELATIONSHIPS OF
TRANSNATIONAL COMMERCIAL LAW, THE NEW
LEX MERCATORIA AND INTERNATIONAL
COMMERCIAL ARBITRATION
'GBENGA BAMODU*
I. INTRODUCTION
One of the notable features of international commercial dispute resolution in
contemporary times is the notably increasing occurrence of the application, par-
ticularly by arbitral tribunals, of an anational system of law or anational rules to
the settlement of such disputes instead of the municipal law(s) of one or more
countries.1 The adjective anational is used in the present context to denote a
system of law or body of rules which is applied, not as belonging to a particular
national legal order but, as something which transcends individual national legal
orders - a transnational system or body of rules. This increase in the role of such
transnational law is due in part to what has been described as the commercial
community's growing disenchantment with national legal systems.2 Other
factors, such as the spill-over effects of over thirty years' of work towards the
harmonisation3 of aspects of international commercial law, have also contributed
to the increasing attention being paid to non-national systems or rules of law.
This article examines the contribution of international commercial arbitration
and arbitral practice to the development of the emerging anational system of law,
as well as the question of the most appropriate appellation for that system, which
is now frequently applied by tribunals in the resolution of disputes arising out of
international commercial transactions. It is often said that as arbitral tribunals are
internationally neutral fora for the settlement of international commercial
* Lecturer in Law at the University of Wales, Aberystwyth..
I Traditionally, the application of choice of law principles leads to the selection of the municipal
law of a single country as the applicable law for the resolution of a dispute arising out of a
commercial transaction with connecting factors to more than one country. By the doctrine of
depeqage, however, it is possible for the municipal laws of more than one country to apply to
different parts of such a contract. See e.g. Libyan Arab Foreign Bank v. Bankers Trust Co. [1989]
3 All E.R. 252.
2 M.T. Medwig, The New Law Merchant: Legal Rhetoric and Commercial Reality (1993) 24 L. &
Pol. Int'l Bus. 589.
3 On harmonisation of international commercial law generally see further, David W. Leebron,
Claims for Harmonization: A Theoretical Framework [1996] 27 Can. Bus. L. J. 63; E. Allan
Farnsworth, Unification and Harmonization of Private Law [1996] 27 Can. Bus. L. J. 48; A.
Rosett, Unification, Harmonization, Restatement, Codification and Reform in International
Commercial Law (1992) 40 Am. J. Comp. L. 683; M. Ndulo, Harmonisation of Trade Laws in
the African Economic Community (1993) 42 I.C.L.Q. 101.
10 RADIC (1998)](ViewImageLocal?handle=hein.journals/afjincol10&div=6&collection=&method=preview&ext=.png&size=3)
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