Hostname: page-component-77c89778f8-9q27g Total loading time: 0 Render date: 2024-07-16T09:26:36.288Z Has data issue: false hasContentIssue false

Rule, Practice, And Pragmatism In Transnational Commercial Law

Published online by Cambridge University Press:  17 January 2008

Abstract

I feel privileged to have been invited to deliver this yearřs FA Mann lecture in succession to a long line of distinguished lawyers who have paid their own tribute to one of the most outstanding German legal émigrés of the 1930s. Francis Mann became a legend in his lifetime for his profound scholarship and his expertise in international and commercial litigation. While still in Germany he had fallen under the spell of the legendary Martin Wolff, the great conflicts lawyer, with whom he was able to resume contact years later in England. Mann himself was to become a leading light in both private and public international law. He had strong views on everything, a few of them decidedly unorthodox. His work The Legal Aspect of Money became a classic, and he died in bed while correcting the proofs of the fifth edition. Happily, Charles Proctor has taken over the mantle of editing the sixth edition, which has now been published by Oxford University Press. Full details of the contributions to English law by Wolff, Mann and other outstanding German émigré lawyers will be found in a collection of essays in a fine new publication, Jurists Uprooted, edited by Sir Jack Beatson and Professor Reinhard Zimmerman.

Type
Research Article
Copyright
Copyright © British Institute of International and Comparative Law 2005

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Comparative Law (2nd edn CUP 1949) 2.Google Scholar

3 [1995] 1 WLR 978; on appeal [1996] 1 WLR 387.Google Scholar

4 Conflict of Laws (13th edn Sweet & Maxwell London 2003), para 24–064.Google Scholar

5 [2001] 2 WLR 1344 at 1355–6.Google Scholar

6 Kronke, HerbertMost Significant Relationship, Governmental Interests Cultural Identity, Integration: “Rules” at Will and the Case for Principles of Conflict of laws’ [2004] 3 Uniform Law Rev 467.Google Scholar

7 As to the choice of ‘the lex mercatoria’ as the applicable law, see 552.Google Scholar

8 ‘The applicable law: general principles of law—the lex mercatoria’, in DM Lew, Julian (ed) Contemporary Problems in International Arbitration (Centre for Commercial London 1986) 113.Google Scholar

9 International Business Law and the Lex Mercatoria.Google Scholar

10 Klaus Peter Berger The Lex Mercatoria in International Commercial Arbitration (North Holland Amsterdam 1992).Google Scholar

11 The Creeping Codification of the Lex Mercatoria.Google Scholar

12 KP Berger (ed) ‘Transnational Law: A Legal System or a System of Decision-Making’ in The Practice of Transnational Law (Kluwer International The Hague 2001) 53.Google Scholar

13 For a similar criticism of the tendency to lump together legalized and non-legalized rules in international law, see Anne-Marie Slaughter ‘International law and international relations theory: a prospectus’ in Eyal Benvenisti and Moshe Hirsch (eds) The Impact of International Law on International Cooperation (CUP 2004) 16 at 41.1 am indebted to Lady Fox for drawing my attention to this paper.Google Scholar

14 ‘The New Lex Mercatoria: The First Twenty-five Years’ in Maarten Bos and Ian Brownlie (eds) Liber Amicorum for Lord Wilberforce (Clarendon Press Oxford 1987) 149 at 152–3.Google Scholar

15 To illustrate some of the difficulties, Mustill observes (n 13, above, at 158–9) that ‘a single institution within a single trade may publish a repertoire of different and mutually inconsistent documents from which the contracting parties may choose the most suitable to reflect the balance of their bargain; there coexist in many trades a number of institutions, each offering its own standard form, and is, of course, a commonplace that parties alter the standard forms to suit their own purposes. Thus there is no guarantee of homogeneity even within a single trade.’Google Scholar

16 The Sources of the Law of International Trade 4–5.Google Scholar

17 The title of his famous contribution to a Liber Amicorum for Martin Domke.Google Scholar

18 Dalhuisen on International Commercial, Financial and Trade Law (2nd ednHart Publishing Oxford 2004) 27.Google Scholar

19 Teubner, Gunther ‘“Global Bukowina”: Legal Pluralism in the World Society’ in Global Law Without a State (Dartmouth Ashurst Aldershot 1997) 3 at 12.Google Scholar

20 ibid at 21.

21 See to the same effect in relation to international customary law Philip Allott ‘The Concept of International Law’ in Michael, Byers (ed) The Role of Law in International Politics (OUP Oxford 2000) 69 at 77.Google Scholar

22 Formation of General Customary International Law.Google Scholar

23 The Committee on the Formation of Customary (General) International Law: Final Report of the Committee (2000).Google Scholar

24 Mendelson, Maurice HThe Formation of Customary International Law (Martinus Nijhoff The Hague 1999) 285 ff.Google Scholar

25 Final Report (above, n 4), pp 20 ff.Google Scholar

26 [1989] QB 728.Google Scholar

27 The Legal Aspect of Money (5th ednClarendon Press Oxford 1992), 201. See now 6th edn (Prosser ed OUP Oxford 2005) para 7.10.Google Scholar

28 Then based at Münster University but now relocated in the University of Cologne.Google Scholar

29 Berger, Klaus PeterThe New Law Merchant and the Global Market Place’ in Berger, (ed) The Practice of Transnational Law (above n 2) 1 at 12.Google Scholar

30 Principles of International Commercial Contracts, Arts 6.2.1–6.2.3.Google Scholar

31 Principles of European Contract Law, Art 6.111.Google Scholar

32 Roy Goode ‘International Restatements of Contract and English Contract Law’ 19972002 Uniform Law Review 231 at 246.Google Scholar

33 Convention on International Interests in Mobile Equipment 2001, Art 48; Convention on the law applicable to certain rights in respect of securities held with an intermediary 2002, Art 18.Google Scholar

34 ‘Transnational transactions: legal work, cross-border commerce and global regulation’ in Likosky, Michael (ed) Transnational Legal Process: Globalization and Power Disparities (CUP Cambridge 2002) 100 at 109–10.Google Scholar

35 In the UK this loophole was subsequently closed by legislation.Google Scholar

36 Directive on Settlement Finality in Payment and Security Systems, 98/26/EC dated 19 May 1998.Google Scholar

37 Directive on Financial Collateral Arrangements, 2002/47/EC dated 6 June 2002.Google Scholar

38 Jeffrey Wool ‘Rethinking the Notion of Uniformity in the Drafting of International Commercial Law: A Preliminary Proposal for the Development of a Policy-Based Unification Model’ 1997–1 Uniform Law Review 46.Google Scholar

39 Unpublished autobiography, 204-5.1 am indebted to Richard, Mr Hart of Hart Publishing for lending me his copy of the autobiography.Google Scholar