Professor Juenger argues that both the unilateralist and the multilateralist schools of thought share a fixation on the idea that law must emanate from the power of a sovereign state. The author points out that such a view of law is a historic; that, in the past, merchants relied on a substantive body of supranational rules that transcended national borders. This Article discusses the contemporary significance of the law merchant for law professors, law students, and practitioners.
The author explains how the practices of contemporary transnational commercial enterprises, as well as the opinions of contemporary scholars , support the idea that there is a substantive body of law, a new law merchant, that does not derive from sovereign states. The prevalence of arbitration as a means of dispute resolution buttresses this view, as do business customs and private codifications.
The author suggests that conflicts professors are wont to ignore the new law merchant in their teachings, in part because it threatens the very existence of their subject. The fact that private parties can emancipate their transactions from state and national law undermines the foundation on which choice-of-law theories rest. Moreover, the author argues that the new law merchant threatens theoreticians because it offers qualitatively superior solutions to transnational problems. Professor Juenger maintains that making room for the new law merchant in conflicts classes holds forth not only a threat but also a promise: it will benefit students and improve conflicts scholarship.
Friedrich K. Juenger,
American Conflicts Scholarship and the New Law Merchant,
28 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol28/iss3/7