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Lex mercatoria e legittimazione
Journal Title: SOCIOLOGIA DEL DIRITTO  
Author/s: Francesco Galgano 
Year:  2005 Issue: 2-3 Language: Italian 
Pages:  24 FullText PDF:  103 KB

The effectiveness of the lex mercatoria is beyond question: the increasing number of arbitration awards that apply the lex mercatoria instead of domestic law to settle international disputes contradicts the view of those who consider it a mere phantom wandering around the world. National courts also refer to the lex mercatoria as a primary legal system separate from domestic legal systems. Moreover, it is a truly cosmopolitan legal system, within which distinctions between civil law and common law fade away, while principles from the developed areas of the Far East are making an entry. Critical remarks about the lex mercatoria that stress its lack of democratic legitimacy are not justified: the lex mercatoria is customary law, confirmed by the judiciary; its legitimacy is not that of statutory law, but that of the common law, which is also customary law, legitimised by virtue of the opinio iuris as confirmed by the judiciary.

Francesco Galgano, in "SOCIOLOGIA DEL DIRITTO " 2-3/2005, pp. , DOI:

   

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