Defining non-state rules
Johanna Hoekstra · 2021
This chapter starts by providing a comprehensive definition of non-state rules. These are those rules that have an transnational/international origin and have as their aim the regulation of international commerce. They comprehend a wide range of sources, including those whose status as law is less certain. After exploring the concept of non-state rules, the chapter then analyses what the lex mercatoria is and how it is linked to non-state rules. The chapter concludes that the most appropriate definition of the lex mercatoria is that of a law which finds its origins in the merchant community and consists of trade usages and practices and general principles of transnational commercial law. It develops independently but it is dependent on the state in how extensively it can be applied. Whilst the lex mercatoria is composed of non-state rules, not all non-state rules are considered lex mercatoria. The second half of the chapter then explores the concept of legal authority in relation to non-state rules. It establishes how legal authority can be understood outside of the state and discusses that the criteria used to understand the legal authority of non-state rules include origin, perception, substance, support, and application.