La lex mercatoria en los laudos de la Cámara de Comercio Internacional

Abstract

The existence of a legal order regulating international commerce, also called lex mercatoria doctrine, is a well known controversy in international law. The different arguments on debate are presented as irreconcilable but all of them are grounded on a common base.

This paper is devoted to the explanation of the consensus present in the argument and to its comparison with the international arbitral practice to finally discover if this agreement sufices to justify the lex. For this purpose we analyze the awards of the International Chamber of Commerce regarding the choice of applicable law and in which the arbitrators were called not to pronounce ex aequo et bono.

The main result of this study is that the existence of the lex mercatoria cannot be proved by arbitral practices under the common conditions of the lex mercatoria doctrine. The only certainty on arbitral awards is the reference to international commercial practice and the acknowledgment of international trade principles established on universally admitted instruments. In conclusion, lex mercatoria needs both factual and dogmatic foundation. The international commerce law should still find out its legitimacy and structure with the help of Jurisprudence.