Do Codification and Private International Law Leave Room for a New Law Merchant?

Imagine that merchants from two different countries-let us say the United States and France-enter into a contract. What law governs their transnational business transaction? One possibility is the law of some country- for instance, the law of the country of which one of the merchants is a citizen, or perhaps the law of a third country that both merchants have selected. Alternatively, their contract could be governed by a distinctive body of international business law that is not tied to any single nation-state. Such a body of law has been variously dubbed the new law merchant and modern lex mercatoria by many of its contemporary proponents. Though a rose by any other name may still be a rose, the moniker lex mercatoria has proven to be of particular significance within the scholarly community. One group of scholars has claimed that a distinctive body of merchant law known as lex mercatoria dates back to the middle ages, if not to Roman times. This distinguished historical pedigree has been used to bolster the case for the new law merchant. Others have challenged the linkage between the new law merchant and the lex mercatoria of old by arguing that there is no historical evidence that there ever was a law merchant. If true, this would mean that there is no precedent with which the new law merchant can ally itself. [CONT