Creation and Dynamics of Lex Mercatoria in Light of International Commercial Arbitration Procedure
Ayoub Partovi, Mostafa Mandegar, Reza Zarei
In the classical doctrines of private international law and in determining the substantive rights governing contracts, essentially, the arbitrator's or judge's efforts leads to choosing a specific or national legal system. The limitations of this choice (the analysis of which is beyond the scope of this study) are clear, even if the parties personally decide to use their contractual freedom to determine the governing law. In this regard, the doctrine has long been examining the idea of referring to an alternative legal system that is safe from inadequacies of choosing a domestic legal system. The Goldman's innovative theory about an independent and transnational legal system (Transnational Commercial Law or Latex Mercatoria) that is suited and exclusive for international business relations was introduced long ago. However, the ambiguity in its meanings, constructive elements, and origins still creates doubts in its originality and referring to it as an independent or complementary source of law. Nevertheless, the arbitrators have not overlooked this flexible and dynamic source in their sentencing, so that, although the initiation of this theory can be attributed to the doctrine, the constructive elements of this emerging legal system should undoubtedly be found in the International Commercial Arbitration Procedure. This study attempts to examine the role and contribution of international commercial arbitration procedure in redefining of Lex Mercatoria and identifying it as a well-known and codified source of law.