La lex mercatoria nell'era della globalizzazione: considerazioni di diritto internazionale pubblico e privato

Starting from the current doctrinal debate about the new lex mercatoria, this study analyses the problem of its legal nature and of whether it can be described as a true legal order of a new kind, in the light of the notion of legal pluralism and of the features considered to be essential for this purpose by the more significant among the general theories of law (normative, institutional, analytical). Taken together with the critical consideration of the main theoretical objections to the lex mercatoria (both legal and political in nature), this analysis leads to the conclusion that it has all the characteristics necessary to be considered an independent, separate legal order, both in international law and in domestic legal frameworks, one that functions in accordance with its own methods, generates its own rules, has a public order of its own and fulfils all the standard functions required of every legal order. The author then goes on to analyse the problem of how the lex mercatoria relates to other legal orders, highlighting how the former co-ordinates with public international law and with the various national legal orders in different ways. Lastly, she considers the inadequacy of the traditional positivistic vision that insists on framing rules governing conflict as though they were designed to refer exclusively to national legal orders, rather than attributing a more complex function to them, one better suited to the reality of modern society.

Nerina Boschiero, La lex mercatoria nell'era della globalizzazione: considerazioni di diritto internazionale pubblico e privato in "SOCIOLOGIA DEL DIRITTO " 2-3/2005, pp , DOI: