{"title":"从商事争议解决看中国《墨卡托利亚法》","authors":"C. Shang, Lamine Balde","doi":"10.1080/0098261X.2021.1934614","DOIUrl":null,"url":null,"abstract":"Abstract This article aims to take stock of where we are, how we got here, and where we are heading with regard to lex mercatoria in Chinese commercial dispute resolution proceedings. Based on qualitative evidence and supplemented by quantitative data, we found that lex mercatoria is hardly used in China, both in the adjudicative and arbitrative decision-making process. We examine multiple potential explanations and argue that state-embedded adjudicative structures as well as Chinese cultural inclinations and philosophic learnings limit the application of lex mercatoria in Chinese dispute resolution settings. We do acknowledge that the characteristics of lex mercatoria itself prevent or discourage its application. However, we conjecture that philosophical, political, and socio-economic ideology and movement shape disputing parties’ preferences. In the past decade, China’s rising new economic organizations such as Free Trade Zones and Belt and Road Initiative influenced the development of new commercial customs and norms, offering a fertile ground for the emergence of a lex mercatoria with Chinese characteristics.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":null,"pages":null},"PeriodicalIF":0.7000,"publicationDate":"2021-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"Searching for China’s Lex Mercatoria through Commercial Dispute Resolution\",\"authors\":\"C. Shang, Lamine Balde\",\"doi\":\"10.1080/0098261X.2021.1934614\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"Abstract This article aims to take stock of where we are, how we got here, and where we are heading with regard to lex mercatoria in Chinese commercial dispute resolution proceedings. Based on qualitative evidence and supplemented by quantitative data, we found that lex mercatoria is hardly used in China, both in the adjudicative and arbitrative decision-making process. We examine multiple potential explanations and argue that state-embedded adjudicative structures as well as Chinese cultural inclinations and philosophic learnings limit the application of lex mercatoria in Chinese dispute resolution settings. We do acknowledge that the characteristics of lex mercatoria itself prevent or discourage its application. However, we conjecture that philosophical, political, and socio-economic ideology and movement shape disputing parties’ preferences. In the past decade, China’s rising new economic organizations such as Free Trade Zones and Belt and Road Initiative influenced the development of new commercial customs and norms, offering a fertile ground for the emergence of a lex mercatoria with Chinese characteristics.\",\"PeriodicalId\":45509,\"journal\":{\"name\":\"Justice System Journal\",\"volume\":null,\"pages\":null},\"PeriodicalIF\":0.7000,\"publicationDate\":\"2021-06-16\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"0\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Justice System Journal\",\"FirstCategoryId\":\"90\",\"ListUrlMain\":\"https://doi.org/10.1080/0098261X.2021.1934614\",\"RegionNum\":4,\"RegionCategory\":\"社会学\",\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q3\",\"JCRName\":\"Social Sciences\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Justice System Journal","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.1080/0098261X.2021.1934614","RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q3","JCRName":"Social Sciences","Score":null,"Total":0}
Searching for China’s Lex Mercatoria through Commercial Dispute Resolution
Abstract This article aims to take stock of where we are, how we got here, and where we are heading with regard to lex mercatoria in Chinese commercial dispute resolution proceedings. Based on qualitative evidence and supplemented by quantitative data, we found that lex mercatoria is hardly used in China, both in the adjudicative and arbitrative decision-making process. We examine multiple potential explanations and argue that state-embedded adjudicative structures as well as Chinese cultural inclinations and philosophic learnings limit the application of lex mercatoria in Chinese dispute resolution settings. We do acknowledge that the characteristics of lex mercatoria itself prevent or discourage its application. However, we conjecture that philosophical, political, and socio-economic ideology and movement shape disputing parties’ preferences. In the past decade, China’s rising new economic organizations such as Free Trade Zones and Belt and Road Initiative influenced the development of new commercial customs and norms, offering a fertile ground for the emergence of a lex mercatoria with Chinese characteristics.
期刊介绍:
The Justice System Journal is an interdisciplinary journal that publishes original research articles on all aspects of law, courts, court administration, judicial behavior, and the impact of all of these on public and social policy. Open as to methodological approaches, The Justice System Journal aims to use the latest in advanced social science research and analysis to bridge the gap between practicing and academic law, courts and politics communities. The Justice System Journal invites submission of original articles and research notes that are likely to be of interest to scholars and practitioners in the field of law, courts, and judicial administration, broadly defined. Articles may draw on a variety of research approaches in the social sciences. The journal does not publish articles devoted to extended analysis of legal doctrine such as a law review might publish, although short manuscripts analyzing cases or legal issues are welcome and will be considered for the Legal Notes section. The Justice System Journal was created in 1974 by the Institute for Court Management and is published under the auspices of the National Center for State Courts. The Justice System Journal features peer-reviewed research articles as well as reviews of important books in law and courts, and analytical research notes on some of the leading cases from state and federal courts. The journal periodically produces special issues that provide analysis of fundamental and timely issues on law and courts from both national and international perspectives.