The Lex Mercatoria as Autonomous Law

This paper will consider the medieval lex mercatoria (Law Merchant) as a set of autonomous commercial customs, which initially materialized in the form of trade usages and practices, but were ultimately codified in national laws and international conventions, such as the UN Convention on Contracts for the International Sale of Goods (CISG). The paper will focus on the historical development of the lex mercatoria, and will attempt to highlight how the conventional academic debates surrounding have become irrelevant. The thrust of this paper will argue that the lex mercatoria is simultaneously both non-state law and state-based law. It is not created in the state, it is not created exclusively in commerce. Rather, it\u27s created by the law itself. To borrow a term from biology, the lex mercatoria is autopoietic. By autopoietic I suggest the lex mercatoria is a type of autonomous organism. It\u27s a self-contained and self-maintaining legal order. But it\u27s not so much a body of substantive law, but rather a process whereby it organizes and produces itself. Paradoxically, in this way it\u27s both autonomous and non-autonomous law

The Lex Mercatoria as Autonomous Law

This paper will consider the medieval lex mercatoria (Law Merchant) as a set of autonomous commercial customs, which initially materialized in the form of trade usages and practices, but were ultimately codified in national laws and international conventions, such as the UN Convention on Contracts for the International Sale of Goods (CISG). The paper will focus on the historical development of the lex mercatoria, and will attempt to highlight how the conventional academic debates surrounding have become irrelevant. The thrust of this paper will argue that the lex mercatoria is simultaneously both non-state law and state-based law. It is not created in the state, it is not created exclusively in commerce. Rather, it\u27s created by the law itself. To borrow a term from biology, the lex mercatoria is autopoietic. By autopoietic I suggest the lex mercatoria is a type of autonomous organism. It\u27s a self-contained and self-maintaining legal order. But it\u27s not so much a body of substantive law, but rather a process whereby it organizes and produces itself. Paradoxically, in this way it\u27s both autonomous and non-autonomous law

A multi-physics approach to simulate the RF heating 3D power map induced by the proton beam in a beam intercepting device

The project High Luminosity Large Hadron Collider (HL-LHC) calls for a streaking beam intensity and brightness in the LHC machine. In such a scenario, beam-environment electromagnetic interactions are a crucial topic: they could lead to uneven power deposition in machine equipment. The resulting irregular temperature distribution would generate local thermal gradients, this would create mechanical stresses which could lead to cracks and premature failure of accelerator devices. This work presents a method to study this phenomenon by means of coupled electro-thermomechanical simulations. Further, an example of application on a real HL-LHC device is also discussed

Force Majeure, Impossibility, Frustration & the Like: Excuses for Non-Performance; the Historical Origins and Development of an Autonomous Commercial Norm in the CISG

This article considers the extent to which a problematic legal doctrine is an autonomous1 international commercial norm, and capable of relative uniformity within the context of the 1980 United Nations Convention on Contracts for the International Sale of Goods (“CISG” or “Convention”)2 and its goal for a sales law that is transnational in design. This norm, is commonly known as force majeure, an Act of God, impossibility, frustration, the German wegfall der geschaftsgrundlage, the French imprevision, and the like, but embodied in CISG Article 79 under the neutral wording of “failure to perform…due to an impediment beyond his control” in CISG. A premise to be explored is that while phrase “failure to perform…due to an impediment beyond his control” in CISG Article 79 may have developed out of an amalgamation of similar national conceptions which, in turn, grew from the conflicting Roman maxims pacta sunt servanda and rebus sic stantibus, Article 79’s excuse for non-performance ultimately stands alone as an autonomous international doctrine under the CISG in private international law. It belongs to a private legal order and is part of the non-state commercial lexicon of the new lex mercatoria. This development plays a crucial role for uniformity in private international law generally, and specifically for international sales law. It supports the idea that in certain cases, particularly in international commercial transactions, individual domestic legal doctrines and norms—some of which evolved out of Roman maxims— can transcend state-based law-making, and may ultimately coalesce into autonomous international principles, regardless of their distinctive development by way of positive law in state-based jurisdictions. Such a development also questions the role of the state in the creation of legal orders. This paper argues that this development of an autonomous legal principle—“failure to perform…due to an impediment beyond his control”—is part of the international commercial lingua franca. Further, this private law-making is also evidence of a growing autonomous global legal culture that is truly independent of any national sovereign. This development affects traditional (i.e. state-based) legal boundaries. The implications for transnational law and global governance is that, in the absence of a supranational legislator, the participants themselves, the international merchants and bankers, are needed—indeed, required—to determine their own legal norms. There is, thus, a greater role for industry practices, custom, and party autonomy in the modern globalized environment

Harmonizing Values, Not Laws: The CISG and the Benefits of a Neo-Realist Perspective

Legal Realism has been deemed as one of the most important jurisprudential movements in Western society during the twentieth century.2 This group, which was by no means coherent, flourished particularly in the 1920s and 1930s at Yale and Columbia law schools, originated with such scholars as, Oliver Wendell Holmes, John Chipman, and Karl Llewellyn.3 Although it has been thought that Realism is “dead”, having been put to rest by H.L.A. Hart’s derisive critique,4 there has been renewed interest in the subject in recent years.5 While it is difficult to speak of a single, comprehensive theory belonging to this group, certain unifying themes can be discerned from the writings of the Realists’, particularly those that concern rule-skepticism and the indeterminacy of law.6 At the risk of simplifying the Legal Realist perspective, the conventional view holds that Legal Realism is a theory7 that law is based, not on formal rules or principles, but instead on judicial decisions that originate from social interests and public policy. In other words, beneath a veneer of scientific and deductive reasoning of “mechanical jurisprudence”8 are legal rules and concepts—that is, legal doctrine—that are often indeterminate, and these are rarely as neutral as they appear. In the words of Hart, the Realists’ theory of law holds the view that “talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and the prediction of them”.9 This Realist theory of law is usually analyzed solely within the context of domestic case law and jurisprudence. But how does the Realist theory of law apply in a global setting, that is, within the context of international law? Particularly, would the Realists have us believe that efforts to create uniform national laws through international treaties or conventions are subject to the same degree of uncertainty as domestic rule-making? In other words, can international conventions be as indeterminate as domestic legislation? Considering that the objective of uniform law conventions is to standardize judicial rule-making across jurisdictions appears to directly challenge the Realist notion that such laws are too indeterminate to be a significant influence on, or predictor of, a judges’ decision, how do we explain the development of functional uniformity10 in legal doctrine related to an international convention

Biomic river restoration: A new focus for river management

River management based solely on physical science has proven to be unsustainable and unsuccessful, evidenced by the fact that the problems this approach intended to solve (e.g., flood hazards, water scarcity, and channel instability) have not been solved and long‐term deterioration in river environments has reduced the capacity of rivers to continue meeting the needs of society. In response, there has been a paradigm shift in management over the past few decades, towards river restoration. But the ecological, morphological, and societal benefits of river restoration have, on the whole, been disappointing. We believe that this stems from the fact that restoration overrelies on the same physical analyses and approaches, with flowing water still regarded as the universally predominant driver of channel form and structural intervention seen as essential to influencing fluvial processes. We argue that if river restoration is to reverse long‐standing declines in river functions, it is necessary to recognize the influence of biology on river forms and processes and re‐envisage what it means to restore a river. This entails shifting the focus of river restoration from designing and constructing stable channels that mimic natural forms to reconnecting streams within balanced and healthy biomes, and so levering the power of biology to influence river processes. We define this new approach as biomic river restoration

Aspirations and accommodations for students with disability to equitably access higher education: a systematic scoping review

IntroductionSeveral international conventions have recognized the importance of equal access to higher education on the basis of ‘capacity’. However, inequalities persist for various groups. This paper presents a systematic scoping review of studies on the aspirations and access needs of students with disability, medical and mental health conditions to equitably participate in tertiary education.MethodsA search of ERIC, PsycINFO and Web of Science databases identified 133 relevant research articles from across the world covering the experiences of students with all types of disability. These were subjected to thematic analysis.ResultsThree main themes were identified. Firstly, the findings showed that a crucial component of the student higher education experience was the development of their own self-identity, addressing stigma and enhancing self-advocacy skills, autonomy, and career prospects. Secondly, the studies described how students struggled for full membership in the university community, calling for a transformation of university physical, social and teaching environments for them to access and participate in academic and social activities. Thirdly, the analysis showed that students valued individual accommodations in both coursework and assessment.DiscussionThese findings constitute a newly comprehensive framework for inclusive tertiary education systems and individual accommodations which is grounded in empirical research from a wide variety of contexts. This can serve higher education institutions to develop policy and procedures to ensure equitable participation of students with disability