A policontexturalidade da Lex Mercatoria: contingência, paradoxo e decisão

Cícero Krupp da Luz

The lex mercatoria is part of a global legal pluralism which reemerges with globalization and consolidation of world differentiated society. Through the autopoietic social systems theory is carried out a construction of a new meaning to the lex mercatoria. This construction is based on a systemic architecture that requires three key issues: contingency, paradox and decision; the three chapters are divided like that. The first chapter seeks between the historical evolution contingency an identity with the differentiated global society, to rebuild a meaning for the lex mercatoria. Thus, the hypercomplex observation generates an operational polycontexturality. From these two concepts the lex mercatoria may have a new direction and new communicative elements. The second chapter is facing the paradoxes of the lex mercatoria: Law without State is reconstructed by a Heterarchichal Law; droit corporatif by structural couplings; contract sans loi by soft law, customary Law by episodic Law. These four communicative elements will deparadox and operationalize the lex mercatoria. In the last chapter is the decision work. The decision is always an operation of an organization in this system. The most important organizations of the lex mercatoria are courts of arbitration. Two cases of international courts of arbitration will be described: a case of the International Court of Arbitration of the Chamber of Commerce in Paris and one of the Arbitration Institute of the Stockholm Chamber of Commerce. Both decisions are reconstructed with the four elements of the polycontexturality of lex mercatoria. Finally, we recognized the limits of lex mercatoria in human rights as a semantic historical form of society.

A policontexturalidade da Lex Mercatoria: contingência, paradoxo e decisão

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