Abstract
Is there an anational lex mercatoria, a “global law without a state?” The debate seemsinfinite.
Some argue that the rules, institutions, and procedures of international arbitration have now achieved a sufficient degree both of autonomy from the state and of legal character that they represent such an anational law. Others respond that whatever
law merchant may exist is really state law—dependent on national
norms and the freedom of contract they provide, and on the enforceability of arbitral awards by national courts.This
paper suggests that the dichotomy of anational law and state law is false. Al- though
an anational law merchant would be theoretically possible, the true
lex merca- toria we are currently observing is not such an anational
law. Rather, it is an emerging global commercial law that
freely combines elements from national and non-nationallaw. This transnational law presents a far more radical challenge to traditional state-based conceptions of law
than the idea of an anational law. It makes the distinction between anational law and state law that permeates the debate
over law merchant simplyirrelevant by transcending it. The true
lex mercatoria marks the shift in global law from segmentary differentiation
in different national laws to a functional differentiation. It is a law
beyond, not without, the state.
The paper is avaliable on academia.edu.
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