By: Arthur J. Gemmell and Autumn Talbott*
ABSTRACT
The lex mercatoria developed as merchant-made, private law. Unlike other bodies of law, the lex mercatoria was not born of statutory or “natural” law but from practical, day-to-day commercial usage. In fact, medieval commercial activities propagated the “most favorable trading practices and customs of the various foreign markets within which [merchants] did business.”[i]
What evolved in the Middle Ages out of necessity stands today as a sometimes controversial testimony to the power of self-regulation through a specialized and practical body of law: the lex mercatoria that has for centuries governed international merchant and commercial arbitrations. As governments increased regulation of commercial dealings, domestic codes began to supplement, and then displace, this tradition of self-regulation by merchant-made law.[ii]
We begin our discussion of the law merchant in Part I by briefly describing the historical significance and development of lex mercatoria and its place in modern commercial legal systems. Essentially, we establish the antecedental bona fides of the Law Merchant.
Arbitration’s emphasis on party autonomy and efficient dispute settlement has led most international commercial agreements to provide for mandatory arbitration in the event of a dispute under the contract. In these arbitration clauses, parties demonstrate their autonomy by choosing the law that governs their contract, both procedurally and substantively. In fact, the possibility of adjudicating on the basis of rules from several origins, as opposed to provisions from a single legal system, is one of the unique features of arbitral adjudication.
We argue in the second part of this article that where sophisticated parties have agreed to incorporate the lex mercatoria, in any form, into the law governing their dispute, states should respect and enforce the resulting arbitral awards. While states always have the option of relying on vague references to public policy to set aside the award or to refuse enforcement, the enforcement of a lex mercatoria award rooted in the history of international commercial arbitration is the better public policy—one that supports enforcement, not avoidance. While the lex mercatoria historically impacted international merchant and commercial arbitrations, governments, in time, increased their regulation of commercial dealings. As a result, domestic codes began to supplement, and then displace, the tradition of self-regulation by merchant-made law.
We posit in part two that it may be time for arbitral professionals, courts, and parties to usher in a renaissance of the lex mercatoria.
PART ONE: THE LEX MERCATORIA
The era of the Law Merchant, or the Lex Mercatoria as it is also known, was a crucial period contributing as much to the development of modern civil and arbitral law as any before or since. Indeed, Kerr has written, “The Law Merchant furnishes the legal science its most romantic branch.”[iii] Commercial merchants came ashore with the tide. Feet dirtied by dust, they proceeded to have their disputes resolved by peers using the customs and practices of the day as their lodestar. With that accomplished, the merchants were away with the tide knowing that “justice” had been attempted.
The Law Merchant spanned a period during which commercial disputes were expeditiously “adjudicated” by merchant peers on the basis of the trade customs of the day. Compliance with the decision maker’s verdict was expected. Lack of compliance often meant what today might be referred to as shunning—commercial shunning with a concomitant effect on the merchant’s credibility. By way of illustration, Wyndham Beawes, a lawyer and Majesty’s Counsel explained, in 1771, the standards that the commercial world, over the years, had come to expect of merchantmen. A merchant, Beawes wrote, need not
. . . be very learned. . . [but] ought on all occasions to have a strict Regard to truth, and avoid Fraud and Deceit as corroding Cankers to his Reputation and Fortune; for, however cunningly the Mask is wore, Chance may, or Time certainly will, discover the Cheat, and render the Wearer exposed to the Contempt and Insults of those he has imposed on.[iv]
The age of the Law Merchant spans an era of commercial dispute resolution with which both lawyer and law student are, regrettably, unfamiliar. Indeed, it is rather bemusing to see the surprise on the faces of lawyers and law students upon learning that neither ADR, in general, nor arbitration, in particular, are new phenomena, tooled in recent days merely to flush out the dross clogging dockets of the world’s courts.
Modernly, the UNIDROIT Principles, in setting forth general rules for international commercial contracts, supportively proposes that those principles “. . . may be applied when the parties have agreed that their contract be governed by general principles of law, the lex mercatoria or the like.” (Italics in the original)[v]
On the other hand, the oft-quoted arbitral expert and jurist, Lord Mustill, queried,
What is the jurisprudential basis of the lex?It is remarkable that given the volume of academic writing on the topic. . . there is even now no consensus on the intellectual basis of the doctrine. Is the lexa law, properly so called, or is it a body of rules which theparties choose. . . to apply to their individual contract? If it is law, from where does it draw its normative force?[vi]
Somewhere between the poles, sits the writing of the distinguished American trial lawyer, Keith Highet, who suggested that the lex mercatoria, in fact, is quite akin to the Emperor’s clothes: nonexistent yet argued about at great length. And then, in a fashion far too clever by half, Highet penned:
The lex mercatoria is in fact an enigma created by a paradox. . . . The paradox in turn has created a quandry from which the only way out was to arrive at the enigma by way of a fallacy. . . a source of legal rules. . . much in the same way that the decision makers would apply a real legal system such as the lex fori or the lex loci arbitri.[vii]
In fact, The Law Merchant has always been associated with the jus gentium of the Roman jurists.[viii] Once the manna of the Pax Romana sprinkled world peace on the trading world peace, for centuries “international” trade gave way to an introspective, domestic commercial system with little influence beyond its boundaries. Nearly everything produced on the manors of Europe, either by family or serfs, was exclusively for local use.
Within the Europe of the Middle Ages, there existed a variety of legal systems that took cognizance of peoples on personal rather than on territorial criteria. A Frank would live and be judged according to Frankish law, a Bavarian according to Bavarian law, a cleric according to ecclesiastical law, a peasant according to the law of the manor, and so on.[ix]
Personal attributes extended to the attributes of status, as well. A noble had a legal status different from that of a serf, a native different from a foreigner, and a man from a woman. Merchants, however, were unique. The term merchant lost its attribute of status and simply became denotive. Merchants were seen as middlemen—wholesalers who engaged in regional and international trade. They were the men who traded outside the jurisdiction of their native land and/or did business with foreigners who lived under different laws.[x] They were also men from whom integrity and honor were expected.
Trade was conducted by land and sea. As maritime trade expanded across the Baltic and Mediterranean Seas, various compilations of customary rules and usages governing the community of merchants evolved. In the mid-fourteenth century, the Consulado del Mar, based on the ancient laws, statutes, and compilations of Italian cities, came to be accepted as the governing law in commercial maritime centers around the Mediterranean.[xi]
The councilors of Majorca revealed in the Consulado their determination to circumvent the legalism and obstructions encountered in the ordinary courts “in order to do away with the expenses of lawsuits and the strife of judicial proceedings among merchants and navigators.”[xii]
Pirenne’s description of the life of merchantmen illustrates the transnationality as well as the hardships endured by the medieval Willy Loman.
Their members, armed with bows and swords, surrounded the packhorses and the wagons loaded with sacks, bales, cases, and casks. . . . the men were going as far as the mines of Goslar to get supplies of copper, the merchants of Cologne, Huy, Flanders and Rouen frequented the port of London, and numbers of Italians were already to be seen at the Ypres fair. Except in winter, the enterprising merchant was continually on the road, and it was with good reason that he bore in England the picturesque name of “dusty foot” (pedes pulverosi, piepowders).[xiii]
The commercial requirements of such merchantmen led to a branch of law which, at that time was—and perhaps even today is—the most inclusive of custom. Malynes wrote,
The said customary law of merchants hath a peculiar prerogative above all customs, for that the same is observed in all places, whereas the customes of one place doe not extend in other places, and sometimes they are observed and sometimes they are neglected. But the Customes of Merchants concerning trafficke and commerce are permanent and constant and when they are not truly observed in some places by errour or misprision…such Customs lose their names and they are called Usurpation which is the cause that many Customs are established for Lawes by him or them that have power to make Lawes.[xiv]
Contributing to this “new law,” was the overall attitude of continental and English sovereigns who adopted a laissez-faire attitude toward the new merchant class in view of the increased tax revenues generated by them and the access to foreign goods that the merchants had obtained. The merchants were permitted to regulate their own affairs so long as they did not impinge upon local matters.[xv]
Informal tribunals run by merchants sprang up to serve the common interests of medieval trade guildsmen. Initially guilds were founded for benevolent and caritative reasons. In time however, guilds developed into a major economic force within the towns where they operated. So influential were some guilds that they were vested with complete control and monopoly over the manufacture and sale of certain goods by town governments via monopolistic trade charters. “We may notice the institution known as the Gild Merchant which seemingly was an association for the purpose amongst others of mutual arbitration. Members of the same gild were bound to bring their disputes before the gilds before litigating the matter elsewhere.”[xvi] Kadens elaborates that guilds were designed to protect the membership from “. . . biased courts and rapacious lords. . . .”[xvii]
In addition to the system of guilds, merchant fairs had been established in England by the Romans, particularly along the borders of the Roman frontier.[xviii] And while the fairs were important for their formative value, it was the Magna Carta that gave English trade its first real impetus. Among the other rights enumerated within the Magna Carta were the commercial guarantees that, “All merchants shall have safety and security in coming into England and in staying and traveling through England, as well as by land as by water, to buy and sell without any unjust exactions, according to ancient and right customs. . . .”[xix]
With the Magna Carta as their foundation, new institutions for trade blossomed in England including the Fair and the Staple Town, each of which became safe and reliable places to trade. The incipient law in these venues differed from that of the Continent whose commercial law had been developed within rich, powerful, self-governing and independent cities. There were no similar cities in England; hence, small towns and fairs relied on lordly charters for their development. Ultimately, however, in both England and on the Continent, commercial town centers developed along side the fairs, establishing both as integral parts in the machinery of Middle Age commerce.[xx] The Statute of the Staple illustrates the royal weight that supported these commercial fora.
Edward, by the grace of God king of England and France and lord of Ireland, to all our sheriffs, mayors, bailiffs, ministers, and other faithful men. . . by the counsel and common assent of the said prelates, dukes, earls, barons, knights, and commons aforesaid, we have ordained and established the measures herein under written, to wit: First, that the staples of wool, leather, wool-fells and lead grown or produced within our kingdom and lands aforesaid shall be perpetually held in the following places: namely, for England at Newcastle-upon-Tyne, York, Lincoln, Norwich, Westminster, Canterbury, Chichester, Winchester, Exeter, and Bristol; for Wales at Carmarthen; and for Ireland at Dublin, Waterford, Cork, and Drogheda, and nowhere else. . . .[xxi]
These scattered locations were linked by generally accepted rules and customs that would govern their commercial activity. The amalgam of the rules and customs of the fairs combined with the rules of the sea became known, even in its day, as the Lex Mercatoria or the Law Merchant.[xxii] In fact, the Royal Statute of the Staple expressly provided that “. . . all merchants coming to the staple shall be ruled by the law merchant, of all things touching the staple, and not by the common law of the land, not by usage of cities, boroughs or other towns. . . .” [xxiii]
To insulate the staple court from any incursion by the common law court, the Royal Statute declared, “In case our bench or common bench. . . . come to the places where the said staples be [they shall not] have any cognizance there of that thing, which pertaineth to the cognizance of the mayor and ministers of the staple.”[xxiv]
While the academic literature focuses predominately on the English Law Merchant, the busiest fairs, in fact, were those of Champagne and Brie where some seven major fairs per year were conducted.
A French writer summarized the impact of the fairs from other than an English perspective.
The influence of the fairs on our public law. . . is undeniable. . . the term fair is the equivalent of the term ‘peace’. . . Thanks to the progress of the peace of the fairs. . . the communications of foreigner with foreigner become more certain; international relations multiply. . . Little by little the last vestiges of primitive hostility disappear. . . In the midst of the diversity of local law, the law of the great fairs everywhere remains the same in its essential features. This law is universal almost by the same right as the Canon Law. The jurisdiction of the fairs command obedience in all parts. And thus emerges the conception of the law merchant, outside and above civil statutes and local commercial usages.[xxv]
Once a fair was concluded, the merchants moved on but the fair bankers stayed behind, having created bills of exchange, credit unions, and mechanisms for foreign exchange—each a permanent service available to the merchants upon their return to the fair.[xxvi] And, indeed, what a contribution to the world of commerce were these instruments. While the common law created and relied on “good title” as evidence of one’s property rights, itinerant merchants could not inspect, demand, or inquire as to the proof of title to the goods they bought and sold. On the belief that the merchant would be dealing in good faith, those servicing the merchantmen developed bills of exchange through which goods were transferred without title searches and upon which a merchant could sue in his own name. This transaction stood in contrast to the common law.
Whereas at Common Law no man’s writing can be pleaded against him as his act unless the same be sealed and delivered in a suit between merchants, Bills of Lading and Bills of Exchange, but being tickets without seals, letter of advice, and credence, policies of assurance, assignations of debt, all of which are of no force at the Common Law are of good credit and force by the Law Merchant.[xxvii]
Malynes found the Bill of Exchange even more praiseworthy, “The nature of a Bill of Exchange is so noble and excelling all other dealings between merchants that the proceedings therein are extraordinary and singular, and not subject to any prescription of law. . . .”[xxviii] The Bill of Exchange and other negotiable instruments that were developed and perpetuated throughout the Law Merchant’s world became so ingrained in the commercial dealings between merchants that their “legality” was, subsequently, incorporated by the common law. Dispute resolution without the common law formalities of good title, consideration, and seal was, indeed, legally transformational.
Disputes over transactions at the Fair required a resolution device that was in tune with the requirements of the merchant class. Fair arbitrations filled the bill. The fairs were pro-business in their orientation and disputes were resolved by arbitrators out of the merchant class itself. The arbitrations, like the Law Merchant, were outside the judicial system of any nation, and amounted to self-regulation by the merchant class.[xxix] Merchants were, according to Bewes, particularly regarded before the laws of England such that “. . . the common and Statute Laws of this Kingdom leave the Causes of Merchants in many cases to their particular laws.”[xxx] Bewes not only described the domestic application of the Law Merchant but went on to explain its transnationality, as well.
In former times it was conceived that those laws that were prohibitory against foreign goods did not bind the Merchant Stranger; but it has now been a long time since ruled otherwise. . . . in the Leagues that are now established between Nation and Nation. . . the English in France or any other Country in Amity are subject to the laws of that Country where they reside, so must the People of France, or any other kingdom, be subject to the Laws of England, when resident here.[xxxi]
The transnational nature of the Law Merchant was especially beneficent to the foreign merchant who, if aggrieved, had been restricted to recovering civilly in whatever had been determined to be the appropriate court. The foreign merchant embarking for England no longer had to travel with oath takers to aid the merchant in sustaining his proof if a suit at common law was required. And even though the merchant’s entourage might attest to the merchant’s honesty, the merchant faced hostile judges with a penchant for supporting local citizens rather than an itinerant they might never again encounter.[xxxii] In today’s terms, we refer to this proclivity by domestic courts as local protectionism. It existed in the era of the Law Merchant and still exists modernly whether in common law or civil law systems.
As for how disputes between merchants came to be resolved, Malynes’ commentary, Consuedo, vel, Lex Mercatoria, provides the backdrop for dispute settlement of the day. After attempts at negotiation failed, the parties turned to “. . . Arbitrement, when both parties do make choice of honest men to end their causes, which is voluntary in their own power. . . and these men. . . give judgments by Awards, according to equity and good conscience observing the Custome of Merchants. . . with brevity and expedition.”[xxxiii]
Since speed in resolution of disputes was a necessary ingredient to the success of the fair courts, the civil procedure of the common law courts was truncated in order to accommodate the merchant. For example, the time for the answering a summons by a defendant in a common law court was fifteen days. Bracton contrasts the Law Merchant, “Likewise, on account of persons who ought to have speedy justice, such as merchants, to whom speedy justice is administered in courts of pepoudrous. . . the time of summons is reduced.”[xxxiv] So important was the requirement of speedy resolution that some panels were established to resolve disputes between the ebb and flow of the two tides, that is, in 24 hours from petition to award.[xxxv]
Swift justice was not only dispensed at the English fairs, but the same principle was adhered to in the Champagne fairs as well. The Champagne Guards spoke of “bon droit et actifs us des foires.”[xxxvi]Speedy resolution was possible since the merchant was “. . . in loco proprio as the fish in water, where he understandeth himself by the custom of merchants, according to which merchants’ questions and controversies are determined.”[xxxvii] Prof Thayer elaborates, “The men with dusty feet who plied their trades from Champagne to St. Ives, from Wye to Nuremberg, had little concern with legal differences. Their disputes were settled with the same method and dispatch in the pie powder courts of England as in the fair courts of the continent. The voices of the consuls of the sea in Genoa and Barcelona found a ready echo in the maritime tribunals of Bristol and of Ipswich where the court sat on the beach and dispensed justice to passing mariners between the tides.”[xxxviii] Not only were the judgments settled consistently and speedily, they were settled with finality. In the words of Lawyer Beawes:
The Chancery will not give relief against the Award of the Arbitrators, except it be for Corruption and where their Award is not strictly binding by the Rules of Law. . . .[xxxix]
This speed and informality stood in sharp contrast to the prevailing state of the law in England at the time. Sir John Fortescue described the English courts as being presided over by judges who worked three hours and once “. . . haven taken their refreshments spend the rest of the day in the study of laws, reading the Holy Scripture, and other innocent amusements at their pleasure.”[xl] Sir Henry Spellman was less generous suggesting that judges, because of their appetite for the grape were given to drunkenness and did not sit for more than three hours “. . . lest repletion should bring upon them drowsiness and oppression of spirits. . . .”[xli] Contrast the lethargic common law courts with, for example, the fair at Champagne which met three times a day!
There can certainly be honest differences of opinion over which of those principles of the Law Merchant most defined its contribution to the world of non-judicial dispute resolution. We fall down on the side of the Law Merchant’s reliance on the principles of equity. The merchant courts were neither the first nor the last to render judgments based upon principles of equity. It might be recalled that the Greeks and Romans—especially the Romans—considered equity an abiding principle of dispute resolution. “Equity means to the Romans, fairness, right feeling, the regards for substantial as opposed to formal, and technical justice, the kind of conduct which would approve itself to a man of honor and conscience.”[xlii]
But the Law Merchant went a step further. In England, it borrowed the principles of equity out of the competing judicial systems of the common law (The Chancery), the Admiralty (to some extent), and canon law courts. It then placed its trust in the hands of merchant arbitrators who were not lawyers to judge according to what was right and just. In one of legal history’s more remarkable forms of private justice, peers were called upon to render judgment when disputes between other peers occurred.
The Roman principle of ex aqueo et bono pervaded the mercantile world from Bergano to the English Admiralty to the statutes of Marseilles, “Pour juger et decider sommairement tous procès et différends entre marchands, sans s’atteindre aux subtilités des lois et ordonnances.”[xliii]The Consuls of Bologna decreed that merchant judges should decide secundum quod aequum crediderint (following what they believe is fair) and in Venice, the arbitrator was to look first at custom and failing that he was directed to use secundam bonam conscientiam (follow good conscience).[xliv]
The Law Merchant’s concept of equity stood in stark contrast to the early common law that relied more on outcome than proof of facts. Common law disputations were often determined by the perjury of compurgation, or by ordeal or wager of law. Prof. Baker characterized this “judicial” process as judgment preceding truth, “. . . once it was adjudged that one of the parties should swear or perform a test there was no further decision to make except whether he had passed it.”[xlv] When juxtaposed with the machinations that took place in the courts of the realm, the attractiveness of the merchant law’s timely and decisive decisions is plain to see.
The Law Merchant was transnational, a lex universalis in scope, whose principal source for the resolution of commercial disputes was mercantile custom. The process of dispute resolution was often superintended by the merchants themselves rather than by professional judges. The Law Merchant’s dispute resolution procedure was summary, speedy, and informal. The overriding arbitral principle was Equity—bona fides—in the medieval sense of fairness.[xlvi]
In addition to the notions of speed, equity, summary proceedings, and negotiable instruments, other features of the Law Merchant that contrasted it with the common law and hence expanded the horizons of the law generally, include:
- Notarial attestation on documents was subordinated to the “good faith” dealings between merchants.
- Oral evidence could contradict written evidence in a fair court.
- Merchant journals could be introduced as evidence.
- Property in the res passed to the purchaser without delivery.
- Unlike Roman law, partners were agents of the partnership and could bind a partnership even when a partner was acting alone.
- Verbal partnerships were sufficient.
- The limited partnership was introduced.
- The law of agency permitted an agent to bind his master and a third party if the agent was acting on the master’s behalf.
- There was no prescriptive acquisition of property between merchants.[xlvii]
Admittedly, some of the contributions listed above were not exclusively derived from English and Continental customs and usage. Agency, for example, can be found in Islamic law well predating the Law Merchant, as can the prohibition against the prescriptive acquisition of property. Nonetheless, the list is sufficiently impressive. The Lex Mercatoria was not, however, without its shortcomings.
Viewing the Law Merchant in an aspirational context and basing its legality on custom, Malynes wrote, “I have Intilted the Book [on the Law Merchant] according to the ancient name of Lex Mercatoria and not Ius Mercatorum because it is customary law approved by the Authority of all Kingdoms and Commonwealths, and not a Law established by the Soveraignty of any Prince.”[xlviii] In the same vein one hundred years or so later, Lord Mansfield held that the Law Merchant “. . . is not the law of a particular country, but the general law of nations.”[xlix] The Law Merchant has also been described as a sort of rebirth of the old jus gentium of the Mediterranean. . . ”[l] and “. . . a kind of Jus Gentium.”[li]
On
the other hand, Carter was far more a positivist—an Austinian perhaps—when it
came to the Law Merchant declaring
[i]. Arthur Gemmell, Western and Chinese Arbitration, 62 (University Press 2008).
[ii]. Veronika Baranova, Lex Mercatoria and World Trade Organisation Law in Relation to International Commercial Contracts, at 3, Interleges, 2006 http://www.interleges.com/index.php? option=com_content&view=article&catid=46%3Aessays&id=93%3Aessay-by-veronika-baronova&Itemid=94
[iii]. C. Kerr, The Origin and Development of the Law Merchant, 15 Va. L. Rev. 350, 350 (1928-9).
[iv]. W. Beawes, Lex Mercatoria Rediviva or the Merchant’s Directory, 31 ( London: J. Rivington 1771). The quotes from this source contain Beawes’ original spelling and punctuation. The medial s was not used since the usual substituted character is the symbol for integral ∫ which this writer chose not to use.
[v]. Preamble,UNIDROIT Principles of International Commercial Contracts, 2004.
[vi]. Quoted in John Linarelli, Analytical Jurisprudence and the Concept of Commercial Law, 114 PENNSTLR, 119, 125 (Summer 2009).
[vii]. Keith Highet, The Enigma of the Lex Mercatoria, 63 Tul. L. Rev. 613, 616-7 (1988-1989).
[viii]. F.C.T. Tudsberry, Law Merchant and the Common Law, 34 L. Q. Rev 392, 394 (1918).
[ix]. A. Mangels, Are the Roots of the Modern “Lex Mercatoria” Really Medieval? Southern Economic Journal, (1/1/1999).
[x]. E. Kadens, The Empirical and Theoretical Underpinnings of the Law Merchant, 5 Chi. J. Int’l L. 39, 44-47 (2004).
[xi].H. Berman & C. Kaufman, The Universality of International Commercial Law, 19 HARV. INT’L L.J. 224, 225 (1978).
[xii]. A. Chase, Notes on Lawyers and Commerce, 29 Nova L. Rev. 201, 205 (2005).
[xiii]. Pirenne, Economic and Social History of Medieval Europe 93, 94 cited in W. Jones, Merchants, The Law Merchant, and Recent Missouri Sales Cases, 1956 Wash. U. L. Q. 397 (1956).
[xiv]. G. Malynes, Lex Mercatoria 3rd ed. 1636, cited in F.C.T. Tudsberry, Law Merchant and the Common Law, 34 L.Q. Rev. 392, 394 (1918).
[xv]. B. Cremades & S. Plehn, The New Lex Merxatoria and The Harmonization of The Laws of International Commercial Transactions, 2 B.U. Int. 317, 318 (1984).
[xvi]. Quote cited by Earl Wolaver, The Historical Background of Commercial Arbitration, 83 U. Pa. L. Rev. 132, 132 (1934) at 134 simply as English Legal Institutions (1899) 268.
[xvii]. Kadens supra note 10 at 51.
[xviii]. Kerr supra note 3at 359.
[xix]. Magna Carta or The Great Charter of King John Granted June 15th, A.D. 1215, In the Seventeenth Year of His Reign cited by Id. at 359.
[xx]. F. Sanborn Origins of the Early English Maritime and Commercial Law, 326 (W.S. Hein 2002).
[xxi]. Ordinance and Statute of the Staple (1353) http://www.constitution.org/sech/sech_062.txt
[xxii]. F. Burdick, What is the Law Merchant, 2 Colum. L. Rvw. 470, 478-82 (1902).
[xxiii]. Id. Ordinance quoted by Burdick at 473.
[xxiv]. Ordinance quoted by Burdick at 473.
[xxv]. M. Huvelin, cited in W.A. Bewes, The Romance of the Law Merchant, 137-8, (Sweet & Maxwell 1923).
[xxvi]. M. McCloskey, Medieval Merchants and Artisans, found at http://www.florilegium.org/files/COMMERCE/Med-Merchants-CA.html visited on October 1, 2010.
[xxvii]. A.T. Carter, The Early History of the Law Merchant in England, 17L.Q. Rev. 232, 242 cites this comment to Sir John Davis’ Concerning Impositions without further attribution.
[xxviii]. Id. citing Malynes Lex Mercatoria at p.74.
[xxix]. Burdick supra note 22 at 472-5.
[xxx]. Bewes supra note 25 at 35.
[xxxi]. Id at 35.
[xxxii]. Kadens supra note 10 at 46-7.
[xxxiii]. G. Malynes, Consuedo, vel, Lex Mercatoria, cited in L. Fortier, International E-Commerce Dispute Resolution, 19 Alternatives to High Cost Litig. 23, 25 (2001).
[xxxiv]. Bracton, De Legibus Angilicae l.v.f. 334 a cited by Burdick supra note 23 at 470.
[xxxv]. John Mo, International Commercial Law, sec. [1.9] (LexisNexus, 1st ed. 1997).
[xxxvi]. Sanborn supra note 20 at 193.
[xxxvii]. Burdick supra note 22 at 474.
[xxxviii]. Philip Thayer, Comparative Law and The Law Merchant, 6 Brook. L. Rev. 139, 141 (1936-7).
[xxxix]. Beawes supra note 25 at 307.
[xl]. Burdick supra note 22 at 472 citing Fortescue without citation.
[xli]. H. Spellman, Spellman’s Original Terms, (1614) Sec. V. Chap. 1 cited by Burdick at 472.
[xlii]. Bryce’s Studies in Hist. and Jur. at 581, cited as such in J. Ewart, What is the Law Merchant? 3 Col. L. Rev. 135, 149 (1903).
[xliii]. Sanborn supra note 20 at 195.
[xliv]. Leon Trakman, The Evolution of the Law Merchant, 12 J. Mar. L. & Com. 1, 10 (1980-1981).
[xlv]. J. H. Baker, An Introduction to English Legal History, pp. 4-6, (Butterworths 2002).
[xlvi]. T. Milenkovic-Kerkovic, Origin, Development and Main Features of the New Lex Mercatoria, found at http://facta.junis.ni.ac.rs/eao/eao97/eao97-10.pdf visited on December 4, 2010.
[xlvii]. W. Bewes, supra note25 at 19-25.
[xlviii]. Malynes, Consuetdo, cited by L. Trakman, From the Medieval Law Merchant to E-Merchant Law, 53 U. Toronto L.J. 265, 271 (2003).
[xlix]. Luke v Lyde, 2 Burr. 883, 887 (K.B. 1759) cited in Philip Thayer, Comparative Law and The Law Merchant, 6 Brook. L. Rev. 139, 139 (1936-7).
[l]. F. Juenger, The Lex Mercatoria and Private International Law, 60 La. L. Rev. 1133, 1134 (2000).
[li]. The Law Merchant, 2 Law Coach 2 (1921-22). Article published without attribution…….
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