The first version of the lists which form the basis of the TransLex Principles was published in 1992[1]. The list contained 39 principles and rules of the NLM together with numerous comparative law references. The list was unstructured and not organized in any way. Its sole purpose was to prove the contents of the NLM at that specific point in time. The English version of the list, which was published in 1993, contained 44 principles and rules[2].
It was Norbert Horn, one of the most important proponents of the NLM doctrine in Germany[3], who brought up the idea that the list could be more than just an unsystematic compilation of principles and rules of the NLM:
‘One is puzzled by the list ... because of its form: A concise listing of individual legal notions and legal principles. Almost each of them would deserve a scientific treatment of its own …The reader acknowledges with great interest the – according to my knowledge up to now most comprehensive – listing of such basic notions and legal principles. In my opinion, the list, in and of itself, constitutes an advancement of legal knowledge’[4].
The original German version of the first edition of this book, which was published in 1996, contained the third version of the list, now with 69 principles and rules of the NLM[5]. Again, the list had no structure and was not organized in chapters or subdivisions. It was in that treatise that the idea of the ‘Creeping Codification’ of the NLM was developed and presented[6]. The English version of the German treatise, which was the first edition of this book, was published in 1999. It contained a new version of the list with 78 principles and rules of the NLM.
There was an intrinsic problem with all lists published between 1992 and 1999. Their growth and character as a mere unorganized compilation of principles and rules reduced their utility. That problem ran counter to the very purpose of the lists, namely the codification of the NLM in a way that makes them easily accessible for practitioners and academics around the globe.
In 1999, CENTRAL began to consider the use of modern communication technology for the implementation of the concept of the ‘Creeping Codification’ of the NLM. The idea of publishing a CD-ROM with the text of the list and the numerous full text materials supporting each principle[7] was quickly abandoned. It was obvious that this technology would not be able to keep pace with the dynamic development of the NLM. Instead, the idea was born to set up a ‘codification platform’ on the Internet. To prepare for this project, a list was published by the Research Team in a CENTRAL-publication on transnational law in late 1999 which was, for the first time, subdivided into fifteen chapters and which contained – also for the first time – the black letter text of each principle and rule contained in the list.[8] In May 2000, the CENTRAL Team, having conducted a global survey on the use of transnational commercial law in international practice, announced that it would ‘publish a comprehensive Online Database on Transnational Commercial Law in early 2001’[9].
While the Internet has been regarded as a typical area of business life for which transnational legal structures have developed into a kind of ‘lex informatica’ or ‘lex electronica’[10], the CENTRAL Research Team regarded the Web as the only technical environment through which the Creeping Codification of the NLM could be implemented. The CENTRAL Research Team quickly realized that the unique character of the World Wide Web avoids the defects inherent in traditional means of codification. The absence of a territorial localization of the Web conforms with the transnational character of the NLM, whose primary goal is to detach commercial law from the territorial constraints of domestic legal systems. The ‘open-access’ environment and global scope of the Web complies with the nature of the NLM as a ‘public domain law’. Also, the Web permits easy and free access to the NLM on a global scale. Unlike printed texts, the technical options available on the Web, coupled with modern IT- and database-technology, allow for easy everyday access, use, as well as the quick and continuous updating and dynamic evolution of the TransLex Principles. Through the Internet, CENTRAL can take account of the special character of the Creeping Codification concept which is as flexible, spontaneous, and highly volatile as the NLM itself.[11] The use of the highly flexible technical environment of the Web assuages concerns that any attempt to ‘catch’ the NLM, which is floating in the transnational sphere, and to force it back into the straightjacket of a code-like list might ultimately result in compromising not only the autonomy, but also the inherent flexibility and highly dynamic character of the NLM[12].
A senior member of the CENTRAL Research Team, Holger Dubberstein, a lawyer and expert in IT and database programming, programmed the database as an internet-based codification platform. The result of his excellent work, the ‘Transnational Law Database’ (Tldb, www.tldb.de)[13] was launched at an international conference on ‘Transnational Law in the Age of Globalization’ held at Münster University on October 26, 2001. At the conference, one of the speakers, Gralf-Peter Calliess, stated:
‘... in terms of providing free and easy access to systematic knowledge of Lex Mercatoria and thereby enabling self-reference, the CENTRAL Transnational Law Database launched today could be a milestone on the road to the New Law Merchant’[14].
After CENTRAL moved from Münster University to the University of Cologne in April 2002, the Tldb was renamed into ‘Transnational Law Digest & Bibliography’ in order to emphasize the ‘Digest-like’[15] quality of the platform, while maintaining the acronym ‘Tldb’. The platform was also transferred from a ‘.de’- to a ‘.net’-domain (www.tldb.net) to underline the transnational character of the codification platform.
Over the next seven years, various problems in the handling of the Tdb manifested. The front-end of the Tldb became too complex, sacrificing the user-friendliness of the platform. At the same time, the back-end program which the members of the CENTRAL Team used to prepare and upload new documents became outdated and its use proved to be very time consuming. Also, the feedback from the users indicated that the message behind the acronym ‘Tldb’ was not readily understood by those academics and practitioners who were not familiar with CENTRAL and its research activities.
For all of these reasons, the decision was made at CENTRAL in early 2008 to set up a completely new online codification platform – TransLex – to which the list and the materials contained in the Tldb would then be transferred. The programming of TransLex was done by two members of the team with considerable experience database-programming, Ulf Krause and Oliver Froitzheim. The new ‘TransLex’-logo has four colours. These four colours represent the four areas of the TransLex platform at www.trans-lex.org:
TransLex Principles:
a list of almost 130 principles of transnational law, the ‘New Lex Mercatoria’.
TransLex Bibliography:
a comprehensive bibliography on transnational law.
TransLex Materials:
a collection of texts of international conventions, model laws, restatements, domestic statutes, soft law instruments and many other materials.
TransLex Links:
a collection of selected links which are relevant for your research in transnational law and international business law.
TransLex was launched at the final rounds of the Willem C. Vis Arbitration Moot Competition in Vienna in early April 2009. In fact, many student teams who have participated in that competition in the past have made extensive use of the Tldb, and the teams who participated in the final rounds of 2009 showed great interest in the new TransLex platform.
[1] Berger, Internationale Wirtschaftsschiedsgerichtsbarkeit, at 374 et seq.
[2] Berger, International Economic Arbitration, at 544 et seq.
[3] See De Ly, International Business Law and Lex Mercatoria, at 234; Marrella, La Nuova Lex Mercatoria, at 690; see also supra Introduction, I.A.1, fn. 31.
[4] Translation by the author of this book, the German original is published in Berger, in: CENTRAL (ed.), Jahresbericht 2007/2008, at 38. See also Winiger, ASA Bull. 1992, at 565: ‘The compilation of substantive legal principles which are being used increasingly by international arbitrators in lieu of domestic laws, coupled with comprehensive references, is of particular value especially for the legal practitioner’ (translation from the German original by the author).
[5] Berger, Formalisierte oder „schleichende“ Kodifizierung des transnationalen Wirtschaftsrechts, at 217 et seq.
[6] See Berger, id.
[7] See Berger, CENTRAL-Datenbank zum transnationalen Wirtschaftsrecht, in: CENTRAL (ed.), Center for Transnational Law, 1997, at 18 et seq.
[8] See Central List of Principles, Rules and Standards of the Lex Mercatoria, in: CENTRAL (ed.), Transnational Law in Commercial Legal Practice, at 146 et seq.
[9] Berger/Dubberstein/Lehmann/Petzold, in: Berger (ed.), The Practice of Transnational Law, at 91, 113 with reference to previous reports on the progress of this project in CENTRAL’s Annual Reports of 1998/1999 and 1999/2000; see also Berger, in: CENTRAL (ed.), Transnational Law in Commercial Legal Practice, 1999, at 121, 144.
[10] Ipsen, Private Normenordnungen als Transnationales Recht?, at 104 et seq.; Kahn, in: Fouchard/Vogel (eds.), L’actualité de la pensée de Berthold Goldman, at 25, 26 et seq.
[11] See Frischkorn, Eur.J.L. Reform 2005, at 331, 343: ‘By the time the list is prepared, the Lex Mercatoria may have changed.’
[12] See e.g. Fortier, Arb.Int’l 2001, at 121, 126: ‘I cannot help but wonder whether Berger’s proposal does not end up impaled on the horns of the very “codification dilemma” that he himself invokes. One may legitimately ask whether any institutional framework is able to maintain the degree of openness and flexibility required to keep pace with the world of international commerce – particularly the world of e-commerce’ (emphasis in the original); Wasserstein Fassberg, Chi.J.Int’l L. 2004, at 67, 82: ‘This push towards formalised codification ... requires lex mercatoria theorists to relax the qualifications for membership and compromise its autonomy in a way which ultimately belies the standard justification offered for its existence - the more formal and explicit the rules, the less organic, the less spontaneous, the less authentic they are’.
[13] See Berger, Arb. Int’l 2002, at 83 et seq.; Berger, RIW 2002, at 256 et seq.
[14] Calliess, German L.J. 2001, www.germanlawjournal.com/article.php?id=109.
[15] See Jenks (ed.) A Digest of English Civil Law (1921).