Originally from: Towards a Uniform International Arbitration Law?

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I. INTRODUCTION

This paper contains some observations regarding the application of transnational rules in international arbitration, from the perspective of the arbitration practitioner.1

It is well known that arbitrators in international disputes sometimes expressly disclose that they have decided cases by application of transnational rules of law, which these days has become an expression synonymous with the lex mercatoria. The contents of numerous known awards and the many scholarly and persuasive writings of the ‘mercatorists’ leave us in no doubt that there is a movement towards a more widespread adoption of transnational rules of law in deciding international disputes. There are some for whom debate on this subject seems a favored pastime, as is evidenced by the volumes of material they have produced advocating the benefits of transnational rules generally, or their preferred embodiment of them.2 Happily for them, much fodder for debate is provided by the formidable school of legal scholars and experienced arbitration practitioners who expound grave doubts about the existence, much less the proper application, of any recognized set of transnational rules of law.3