It is a mark of a developed economyand legal system that business and entrepreneurs are afforded a range ofoptions and a great freedom in their dealings.

No other country’s law comesclose to typifying this truism than English Commercial Law. The pro-businessenvironment cultivated by English Law is owes itself to its historical andcontemporary roots. This essay shall examine in detail how certain historicalfeatures of Commercial Law, have since been embed in a contemporary manner,allowing for a thriving pro-business English Commercial Law.The most influential factor ofmodern commercial law, the Lex mercatoria, is one such feature that is found entrenchedin all aspects of English Commercial Law. Finding itself in the Middle Ages, disputesbetween merchants would be settled in merchant courts, where judge and jurywould be merchants themselves.[1]Instead of applying the local law, they would apply the lex mercatoria. Thislaw was based on general customs and practices, and was developed outside theEnglish common law.

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However, this fact is disputed by modern historians, whoclaim the lex mercatoria to be ‘an expeditious procedure especially adapted forthe 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 themerchants needs. As a result, this emphasised two vital features of what makesmodern English Commercial Law so pro-business, those of ‘freedom of contract’and ‘flexibility.’ The freedom of contract allowed for merchants to conduct theirdealings with no intervention, and as such were able to procure the bestcontracts they envisaged, once again showing they importance this placed onpro-business. The flexibility allows for the law to adapt to new mercantilepractices as well.[3] Inaddition to these features, lex mercatoria was responsible for the developmentof pivotal features to commercial law, including the bill of exchange and the billof lading. From the above, we can start togain a small and rudimentary understanding of how lex mercatoria has deeply impactedEnglish Commercial Law. However, its historical impact is not limited to theaforementioned; its incorporation into the common law allows for a greaterunderstanding of English Commercial Law’s stance as a pro-business market.

Upuntil the 17th century, the Court of Admirality took over [1] LSSealy & RJA Hooley ‘Commercial Law Text, Cases and Materials’ 2005 3rdedition p.14[2] JHBaker ‘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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