I. INTRODUCTION: A QUESTION MARK (AND AN OXYMORON)
A. A Question Mark: What “Rules” Are We Talking About?
“Transnational rules” is not a term of art. Its content overlaps and is often assimilated to substantive public policy and sometimes used interchangeably with lex mercatoria, or general principles, two equally elusive concepts. Many authors have tackled the difficult task of defining these concepts and many have abandoned it in frustration. Some are fervent proponents of these rules, others deny their very existence, comparing lex mercatoria to “a phantom ship floating through the scholarly debate, evaporating without leaving a trace if one wants to get a closer look.”
I do not intend to add to the confusion but shall propose in “cavalier” fashion that, for the present paper, transnational rules are those that are universally considered as being non-waivable fundamental rules to be complied with by the actors of international commerce.