“Transnational Law: A Legal System or a Method of Decision Making?”, 17 Arbitration International 59 (2001). (Also published in K.P. Berger (ed.), The Practice of Transnational Law, 53-65, Kluwer, 2001).
After some 35 years of legal debate and countless applications of transnational rules by international arbitrators since far before the debate over the concept even began, it may seem surprising that general principles of law—also frequently referred to as transnational rules or lex mercatoria—remain such a divisive issue in the world of international arbitration. Publications on the issue are indeed just as passionate as they were when the phenomenon was first identified and labelled as lex mercatoria in the 1960s, or when it became more broadly acknowledged in the 1980s. A recent arid challenging example of this ongoing interest is found in Klaus Peter Berger’s contribution to the study of ‘The Creeping Codification of the Lex Mercatoria’.