The True Lex Mercatoria: Law Beyond the State

Is there an anational lex mercatoria, a “global law without a state?” The debate seems infinite. 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. Although an anational law merchant would be theoretically possible, the true lex mercatoria 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-national law. 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 simply irrelevant 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.