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It is a mark of a developed economy
and legal system that business and entrepreneurs are afforded a range of
options and a great freedom in their dealings. No other country’s law comes
close to typifying this truism than English Commercial Law. The pro-business
environment cultivated by English Law is owes itself to its historical and
contemporary roots. This essay shall examine in detail how certain historical
features of Commercial Law, have since been embed in a contemporary manner,
allowing for a thriving pro-business English Commercial Law.

The most influential factor of
modern commercial law, the Lex mercatoria, is one such feature that is found entrenched
in all aspects of English Commercial Law. Finding itself in the Middle Ages, disputes
between merchants would be settled in merchant courts, where judge and jury
would be merchants themselves.[1]
Instead of applying the local law, they would apply the lex mercatoria. This
law was based on general customs and practices, and was developed outside the
English common law. However, this fact is disputed by modern historians, who
claim the lex mercatoria to be ‘an expeditious procedure especially adapted for
the needs of men who could not tarry for the common law.’[2]
From this, we can gather that the lex mercatoria was suited and adapted to the
merchants needs. As a result, this emphasised two vital features of what makes
modern English Commercial Law so pro-business, those of ‘freedom of contract’
and ‘flexibility.’ The freedom of contract allowed for merchants to conduct their
dealings with no intervention, and as such were able to procure the best
contracts they envisaged, once again showing they importance this placed on
pro-business. The flexibility allows for the law to adapt to new mercantile
practices as well.[3] In
addition to these features, lex mercatoria was responsible for the development
of pivotal features to commercial law, including the bill of exchange and the bill
of lading.

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From the above, we can start to
gain a small and rudimentary understanding of how lex mercatoria has deeply impacted
English Commercial Law. However, its historical impact is not limited to the
aforementioned; its incorporation into the common law allows for a greater
understanding of English Commercial Law’s stance as a pro-business market. Up
until the 17th century, the Court of Admirality took over

[1] LS
Sealy & RJA Hooley ‘Commercial Law Text, Cases and Materials’ 2005 3rd
edition p.14

[2] JH
Baker ‘The Law Merchant and the Common Law’ (1979) 38 CLJ 295 at p 301

[3] Bogdandy and Dellavalle
‘The lex mercatoria of systems theory’ Trans. L.T. 2013, 4(1), 59 -82.

 

 

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