Abstract:
International trade law forms an influential (due to threat of trade sanctions) normative tier
above domestic law in shaping the process of economic globalization. Its main components are
multilateral agreements such as the World Trade Organization’s General Agreement on Trade
in Services and Agreement on Trade-Related Aspects of Intellectual Property Rights.
Increasingly important are bilateral trade agreements. Although often termed free trade
agreements, their inclusion of pro-monopolistic intellectual property components and
provisions designed to alter the health systems of less important trading partners suggests a
preferential strategic purpose favoring multinational corporate interests, with implications for
applied ethics due to their limited democratic input and lack of engagement with bioethical and
human rights norms.1 One of the main problem areas for the identification and protection
of global public goods has been their (often adverse) interaction with international trade law.
Of course, a fair, welfare-promoting international trade regime that contains trade disputation may be seen as a global public good in itself, particularly if that facilitates the global dispersal
of products and services that have community benefit.2
The Latin term lex mercatoria denotes transnational self-regulation among merchants at least
as early as the Middle Ages. Legal scholars disagree about whether historical lex
mercatoria constituted a legal system. Nowadays, transnational private governance is practiced
and expanded. Modern formulating agencies like International Institute for the Unification of
Private Law and UN Commission on International Trade Law work out systematic restatements, principles, and internationally standardized trade terms to further worldwide
commercial transactions. Governmental and nongovernmental organizations formulate the socalled soft law, that is, guidelines and best practices, to bring about international norms in many
areas where no global legislation is available. Historically and currently, parties in international
business disputes avoid state courts and prefer arbitration. Arbitration tribunals apply lex
mercatoria, the theoretical dispute about the qualification of the rules as law notwithstanding.
In a global context, the private, self-governing Lex mercatoria approach is indispensable. Legal
scholars and social scientists today are exploring the legitimacy of rules developed by private
organizations and the interplay of law and private ordering.
