Applying The New Lex Mercatoria By Opting-Out Approach In Settlement Of International Commercial Contract Disputes

Taufiqurrahman, Taufiqurrahman (2020) Applying The New Lex Mercatoria By Opting-Out Approach In Settlement Of International Commercial Contract Disputes. Transnational Business Law Journal, 1 (2): 1. pp. 91-104. ISSN 2722-1105

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Abstract

The problem that must be solved at first in international commercial contract dispute settlement is
the determination of applicable law. This problem is not easy to be solved in the absence of a choice
of law clause. Generally, judges or arbitrators attempt to use conventional methods of determination
that ultimately designate national law from either party. This conventional method certainly creates
a sense of injustice for one of the parties whose national law is not embarrassed. From the condition
above, the existence of an international law regime (the New Lex Mercatoria made by International
Organizations operating in the field of International Commercial Law) as well as an approach that
enforces the law regime is urgently needed in international trade traffic. The purpose of this study
was to determine the importance of using an opting-out approach to enforce the New Lex Mercatoria
in the resolution of commercial disputes encountered. The research method used is normative legal
research method with the statute and conceptual approach. The results show that the "opting-out"
approach further expands the potential of the New Lex Mercatoria in the settlement of international
commercial contract disputes that ultimately leads to the harmonization of international commercial
law.

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