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Does International Trade Need a Doctrine of Transnational Law? pp 5–26Cite as

Review of Current Use of the Law Merchant in Domestic and International Law

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Part of the book series: SpringerBriefs in Law ((BRIEFSLAW))

Abstract

“Commercial law occupies in some sense ground zero of the onslaught of globalization.” This observation by Jane K. Winn offers a strong metaphor for the significance and the traditional pioneering role of commercial law. Commercial contract law currently forms the only consistent body of transnational contract law and therefore plays an exemplary role in the formation of transnational legal methodology.

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Notes

  1. 1.

    Winn (2002), p. 445.

  2. 2.

    European Union.

  3. 3.

    The Common Core of European Contract Law.

  4. 4.

    See preambles of those texts and Lando and Beale (2000), p. xi.

  5. 5.

    See Study Group on a European Civil Code/Research Group on EC Private Law (Acquis Group), (2008), Introduction, para’s 60–71 and see the overview over many relevant legal instruments in Twigg-Flessner (2008), at 3.3.

  6. 6.

    For details refer to Study Group on a European Civil Code/Research Group on EC Private Law (Acquis Group) (2008), Introduction, para 50 et seq.

  7. 7.

    Uniform Law of International Sales, The Hague Academy, 1964.

  8. 8.

    Study Group on a European Civil Code/Research Group on EC Private Law (Acquis Group) (2008), Introduction, 60–76.

  9. 9.

    See for instance Schmidt (1982), p. 837. Surely, proponents of an integrated solution who only see the law of obligations concerned by the Handelsrecht overlook the more wide ranging provisions that the commercial codes make such as register law, the name of the company, Firma, accountancy rules and much more which to my mind are not obvious candidates for an insertion into the special law of obligations, Besonderes Schuldrecht. Cf. Müller-Freienfels (1978), p. 618 or the remark of Wiethölter (1970), p. 37, that merchant law (Handelsrecht) existed only for a few lawyers, such as law students. In my view, this perception comes from the development of a considerable body of special law for the different areas of commercial law, such as public limited companies, take overs, mergers and so forth where the GmbH Gesetz (the German Limited Companies Act) stood only at the beginning. These special laws have developed an overwhelming significance in society. The traditional commercial codes still contain the general principles on which the special law is built and so those should continue to form the backbone of the highly fragmented special laws. An old law is not inevitably outdated.

  10. 10.

    Cf. the discussion surrounding the recent reform of Turkish private law including the commercial code and consumer law as reported by Damar and Rösler (2011), p. 612.

  11. 11.

    So-called objective approach, see below 2.4.1.2.

  12. 12.

    See below 2.4.1.2.

  13. 13.

    Buergerliches Gesetzbuch, the German civil code.

  14. 14.

    §§13 and 14 of the BGB, Buergerliches Gesetzbuch, and cf. Alpa and Andenas (2010), pp. 138–139; Schmidt (2005), p. 837, and see below, 2.4.1.2.

  15. 15.

    Cf. 1. above.

  16. 16.

    Many of the inconsistencies were picked up by the ‘stakeholder’ expert group and may have led to a correction of the considerations (meeting on 17th April 2011), such as the passing of risk upon delivery to the first carrier, a typical rule in commerce, also to apply to certain consumer contracts, as suggested by the EG in the ninth meeting, p. 1. Also, the inappropriate use of the term ‘specific performance’ in the eighth meeting of the EG (p. 2) was pointed out.

  17. 17.

    The latter aspect even gives rise to a whole special trade, so called string sales, see Bridge (1991).

  18. 18.

    See in more detail 3. below.

  19. 19.

    Grundgesetz, Basic Law, the German constitution.

  20. 20.

    Cf. for example Grossi (2010), p. 119/123 and Schmoeckel (2008), p. 93 (No. 93).

  21. 21.

    See the headline of the opening section of the German commercial code, Handelsgesetzbuch. For a text in print see the compact volume by Beck publishers Aktuelle Wirtschaftsgesetze (12th edn Beck'sche Textausgaben, C.H.Beck, Munich 2011) which also contains other relevant commercial law.

  22. 22.

    The Allgemeines deutsches Handelsgesetzbuch, ADHGB of 1861 is still in force in Liechtenstein since 1865 as amended. It still maintains the notion of Kaufmanmn, merchant, (“Über den Handelsstand”) as well as the notion of Handelsgeschaeft.

  23. 23.

    Cf. Horn et al. (1995), No. 18.

  24. 24.

    Merz (1968).

  25. 25.

    See eg §377 HGB and Article 38, 39 CISG.

  26. 26.

    Allgemeines Deutsches Handelsgsetzbuch, General German Commercial Code.

  27. 27.

    Cf. Schmoeckel (2008), No. 182.

  28. 28.

    The debate in the 8th meeting is reported to have included the treatment of those rules depending on whether a potential CFR, the OI, would only cover sales contracts. In this case, the general rule was said to be redundant but for its para (4). It is not clear what was meant by this the way it is reported as para (4) has no meaning without para’s (1)–(3).

  29. 29.

    Usually incorporating the infamous clause:“This does not affect your statutory rights”. Followed by an offer to purchase break down cover or an extended warranty when the statutory rights would cover some more years than the manufacturer’s guarantee anyway.

  30. 30.

    Cf. de Hoon and Mak (2011), p. 518, 522 et seq.

  31. 31.

    At page 2 of the transcript.

  32. 32.

    Directive 99/44/EC.

  33. 33.

    Directive 2006/123/EC.

  34. 34.

    Directive 1993/13/EEC.

  35. 35.

    See for instance the cases of Pammer, C-585/08 and Hotel Alpenhof C-144/09 by which the ECJ decided about the application of Article 15 (1) lit.c of the ‘Brussel I Regulation’, Regulation (EC) 44/2001.

  36. 36.

    Handelsgesetzbuch, Commercial Code, first enacted on 10 May 1897.

  37. 37.

    Occurring in the context of competition law as shaped by the European Court of Justice (ECJ), now General Cort, §14 of the BGB, in the UWG, the Gesetz gegen den unlauteren Wettbewerb, the unfair competition law, and in tax law, eg in the UStG (Umsatzsteuergesetz), the VAT legislation.

  38. 38.

    Horn et al. (1995).

  39. 39.

    Ibid., No.s 24, 25.

  40. 40.

    Ibid., No.10.

  41. 41.

    Alpa and Andenas (2010), p. 338.

  42. 42.

    The question of whether or not non-state law is law will not be discussed here. See for further discussion for example Canaris (1996), p. 573; Teubner (1996).

  43. 43.

    Draft Regulation of the European Parliament and of the Council on the law applicable to contractual obligations (Rome I), PE-CONS 3691/07.

  44. 44.

    Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).

  45. 45.

    UNCITRAL Model Law on International Commercial Arbitration (1985) (as adopted by the United Nations Commission on International Trade Law on 21 June 1985).

  46. 46.

    The 1980 Rome Convention on the Law Applicable to Contractual Obligations.

  47. 47.

    Photo Production Ltd v Securicor Transport Ltd [1980] AC 827; Vita Food Products Inc v Unus Shipping Co Ltd. [1939] AC 277 (PC, Nova Scotia); Shamil Bank of Bahrain EC v Beximco Pharmaceuticals Ltd. [2004] EWCA Civ 19, [2004] 1 WLR 1784; Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50; Halpern & Ors v Halpern & Anr [2007] EWCA Civ 291.

  48. 48.

    Vita Food Products Inc v Unus Shipping Co Ltd. [1939] AC 277 (PC, Nova Scotia).

  49. 49.

    See also below, 3.1.

  50. 50.

    Bundestagsdrucksache [official bulletin of the German federal parliament] 14/6040, 92.

  51. 51.

    Fawcett, et al. (2005), p. 985/986, (No. 16.145).

  52. 52.

    Cordero-Moss (2010) and see below 3.3.

  53. 53.

    Cordero-Moss (2010), p. 220, 221.

  54. 54.

    Cordero-Moss (2010), p. 221.

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  1. Institute of Advanced Legal Studies, University of London, 17 Russell Square, London, WC1B 5DR, UK

    Dr. Maren Heidemann

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Heidemann, M. (2012). Review of Current Use of the Law Merchant in Domestic and International Law. In: Does International Trade Need a Doctrine of Transnational Law?. SpringerBriefs in Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-27500-5_2

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