Principles of European Contract Law - Essay Example

The Unidroit Principles have been regularly applied as lex mercatoria in international commercial arbitration, as they 'meet all the substantive requirements of a true law merchant. On the contrary, arbitrators are being reluctant to apply PECL as generally accepted principles of commercial law in international arbitration. This may be due to their relative novelty, to the fact that their scope is limited to the European Union, or to the strong materialism and esprit collectif which manifests itself by the preminent role of the good faith principle and by a social regulation of the contract which may be dubious in an international context (in particular, the regulation on excessive benefit or unfair advantage, unfair terms not individually negotiated or change of circumstances).

In this sense, in the ICC arbitration case no. 12111, the arbitrator rejected claimant's claim for the application of PECL, concluding that they constituted an academic research, at that stage not largely well-known to the international business community, being a preliminary step to the drafting of a future European Code of Contracts, not enacted yet. Thus, PECL has not yet obtained a universal status as a (modern) lex mecatoria. It cannot be regarded as constituting an autonomus lex mercatoria but as a part of universal lex mercatoria. . And at one time, without doubt, it was the law of England simply because it was the law of other nations.

Its OriginThe exact place and time of its origin is uncertain. Many writers have stated that it began in Italy in the central part of the Middle Ages. But investigation of early documents shows that it goes back much further. For instance, to the time when the Arabs dominated the Mediterranean.But they invented little and many of the terms which they used came from the Romans, Greeks and Phoenicians, who for many hundreds of years monopolized the sea commerce.First Treaties on Merchant Law in England - 1622The first work on merchant law in England was written by Gerard Malynes published in 1622, entitled "Consultudo Vel Lex Mercatoria" or the Ancient Law Merchant.

In his preface to this work, he stated that he had entitled it Lex Mercatoria instead of Jus Mercatorum because it iscustomary law provided by the authority of all kingdoms and Commonweals, and not a law established by the sovereignty of any prince. Blackstone stated that the affairs of commerce were regulated by a law of their own called the Law Merchant or Lex Mercatoria "which all nations agree in and take notice of and it is particularly held to be part of the law ofEngland which justifies the causes of merchants and the general rules which obtain in all commercial countries.

" Still later, Lord Mansfield stated that "Mercantile law is not the law of a particular country but the law of all nations".On What Law Merchant BasedThe Lex Mercatoria would seem to be in part based on Roman law, in part maritime custom, in part the law of the Medieval