Conceptualizing Lex Mercatoria: Malynes, Schmitthoff and Goldman compared
| Author | Dave de Ruysscher |
| DOI | 10.1177/1023263X20938247 |
| Published date | 01 August 2020 |
| Date | 01 August 2020 |
| Subject Matter | Articles |
Article
Conceptualizing Lex
Mercatoria: Malynes,
Schmitthoff and
Goldman compared
Dave de Ruysscher*
Abstract
This article compares the doctrines on transnational commercial customs in Malynes’ Lex Mer-
catoria (1622) and in the writings of Clive M. Schmitthoff and Berthold Goldman. It is argued that
core problems in conceptualizations of lex mercatoria are present in all these texts. Malynes
unsuccessfully attempted to reconcile a new approach of considering law merchant as ius gentium
on the one hand, with a tradition of particular customs of trade on the other. All three authors
mentioned struggled when explaining how custom emerges from contracts or practice. Malynes,
Schmitthoff and Goldman tried to apply existing notions (usage, custom) in order to do so, often
referring to historical arguments, but they could not bridge the fundamental differences existing
between customs of trade and ius gentium. As a result, all three authors failed in putting forward a
workable theory of lex mercatoria. Non-matching legal views on international business practices
were cut and pasted together, as it were, and new theories on lex mercatoria would do well not to
replicate this approach.
Keywords
Intellectual history, commercial law, customary law, lex mercatoria, legal history
1. Introduction
The doctrinal concept of lex mercatoria continues to defy lawyers. In the 1960s, two authors, Clive
M. Schmitthoff and Berthold Goldman, proposed definitions of the customary law that relates to
* Tilburg University, Tilburg, Netherlands
Corresponding author:
Dave de Ruysscher, Tilburg University, Postbus 90153, Tilburg, 5000 LE, Netherlands.
E-mail: d.deruysscher@uvt.nl
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(4) 465–483
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/1023263X20938247
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MJ
MJ
transnational commercial contracts.
1
Their theories on the contents and features of lex mercatoria
are nowadays still often considered authoritative. However, these theories are far from monolithic.
It will be demonstrated hereinafter that over time both Schmitthoff and Goldman adjusted their
ideas and that, in spite of the frequent restatements, importan t problems remained unsolved.
2
While at present new interpretations of lex mercatoria continue to unfold,
3
the steady stream of
literature on the subject still grapples with questions that were either insufficiently answered or not
resolved at all in Schmitthoff’s and Goldman’s accounts. Moreover, the first doctrinal text on the
topic, which is Consuetudo, vel Lex Mercatoria by Gerald Malynes (1622), was already vague on
many of the issues for which Schmitthoff and Goldman later did not find adequate responses.
This article will both compare and, in so doing, scrutinize the doctrine of the three authors
mentioned. The tertium comparationis are the informal rules that apply in transnational business
environments, and which are mostly concerned with commercial contracts. The three named
authors were, each in their own right, drafting concepts and theories that allowed for integrating
these informal rules within the framework of existing legal concepts and law. Although these three
authors provided rationales relatively independent of one another, comparison of their writings
yields the conclusion that flaws in their theories result from mixing two different traditions, one
belonging to a primarily theoretical strand of civil law doctrine, another to mercantile practice, that
is, the customs of merchants.
In addition, the method used in this article is not only comparative but also historical. Legal
history is useful for identifying thoughts that, over the passage of time, have come to be combined
in theories of lex mercatoria. Ideas must be understood as mirroring a certain context, which is at
least partly historical. Therefore, historical contextual analysis of the views that underlie
1. Clive M. Schmitthoff (d. 1990) wrote several chapters and articles on lex mercatoria, starting in 1961. See C.-J. Cheng
(ed.), Clive M. Schmitthoff’s Select Essays on International Trade Law (Nijhoff, 1988). This collection comprises nearly
all English writings of Schmitthoff. It does not contain C.M. Schmitthoff, ‘Das neue Recht des Welthandels’, 28 Rabels
Zeitschrift, p. 47 and C.M. Schmitthoff, ‘International Trade Usages’, Institute of International Business Law and
Practice Newsletter (1987). Berthold Goldman (d. 1993) presented his views in several articles and chapters, dating
between 1964 and 1993: B. Goldman, ‘Fronti`eres du droit et lex mercatoria’, 9 Archives de philosophie du droit (1964),
p. 177; B. Goldman, ‘La lex mercatoria dans les contrats et l’arbitrage internationaux: r´ealit´e et perspectives’, 2 Travaux
du Comit´
e franc¸ais de droit international priv ´
e([1979] 1980), p. 221; B. Goldman, ‘Lex Mercatoria’, 3 Forum
Internationale (1983), p. 3; B. Goldman, ‘The Applicable Law: General Principles of Law – The Lex Mercatoria’, in
J.D.M. Lew (ed.), Contemporary Problems in International Arbitration (Springer, 1986), p. 113; B. Goldman, ‘Nou-
velles r´eflexions sur laLex Mercatoria’ inChristian Dominic ´e,Robert Patry and Claude Reymond (eds.), Etudes de droit
international en l’honneur de Pierre Lalive (Helbing & Lichtenhahn, 1993, p. 241. An early opinion on the Suez
Company as a company pertaining to ‘the international legal order’, rather than national law, was published in Le Monde
in October 1956: B. Goldman, ‘La Compagnie de Suez, compagnie internationale’, Le Monde, 4 October 1956; see
https://www.trans-lex.org/img/monde.jpg. The first author to use the notion ‘new law merchant’ was Aleksandar
Goldstajn: A. Goldstajn, ‘The New Law Merchant’, 12 Journal of Business Law (1961), p. 12. Schmitthoff most
probably borrowed his concept, since he cited Goldstajn in his first article on the modern lex mercatoria.
2. For a thorough analysis of Goldman’s and Schmitthoff’s ideas, see O. Toth, The Lex Mercatoria in Theory and Practice
(Oxford University Press, 2017), in addition to N.E. Hatzimihail, ‘The Many Lives – and Faces – of Lex Mercatoria:
History as Genealogy in International Business Law’, 71 Law and Contemporary Problems (2008), p. 169. Not all of
Schmitthoff’s publications were analysed in this literature, which means that changes in views were not always taken
into account.
3. Without claiming to be exhaustive, one can refer to the views of Roy Goode (distinguishing transnational commercial
law from lex mercatoria, the latter of which is customary but not universal or autonomous), Gunther Teubner (lex
mercatoria as encompassing globalized autopoietic communications), and da Sousa Santos (the legal order of global
capital).
466 Maastricht Journal of European and Comparative Law 27(4)
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