lex mercatoria의 21세기적 의의

This article explores the social implications of lex mercatoria in the 21st century in the world as well as in Korea. The lex mercatoria may be defined “a set of general principles, and customary rules spontaneously referred to or elaborated in the framework of international trade, without reference to a particular national system of law.” The notion of the lex mercatoria is not new. With the rise of nationalism and the codification of customary law in the 19th century, the law merchant was incorporated into the municipal laws of a nation. However, in the latter part of 20th century, social groups, such as the community of merchants, have became capable of producing legal rules in addition to the national legislation by parliament. Moreover, in the past years, arbitrators have applied the lex mercatoria and it has been recognized by national law and by the court. The needs to study lex mercatoria as a self-regulation have been proved both in Korea and in the world communities. Development of lex mercatoria in various local, international and cyberspace communities will supplement the shortcomings of positivism and fragmentation of national or municipal law in 21 century.