Conceptualizing Lex Mercatoria: Malynes, Schmitthoff and Goldman compared

Abstract

This article compares the doctrines on transnational commercial customs in Malynes’ Lex Mercatoria (1622) and in the writings of Clive M. Schmitthoff and Berthold Goldman. It is argued that core problems in conceptualizations of lex mercatoria are present in all these texts. Malynes unsuccessfully attempted to reconcile a new approach of considering law merchant as ius gentium on the one hand, with a tradition of particular customs of trade on the other. All three authors mentioned struggled when explaining how custom emerges from contracts or practice. Malynes, Schmitthoff and Goldman tried to apply existing notions (usage, custom) in order to do so, often referring to historical arguments, but they could not bridge the fundamental differences existing between customs of trade and ius gentium. As a result, all three authors failed in putting forward a workable theory of lex mercatoria. Non-matching legal views on international business practices were cut and pasted together, as it were, and new theories on lex mercatoria would do well not to replicate this approach.