Private regulation in the context of international sales contracts

• Published in: Law, democracy & development Vol. 24; no. 1; pp. 27 - 53
• Main Author: Coetzee, Juana
• Format: Journal Article
• Language: English
• Published: University of the Western Cape 2020; University of the Western Cape, Faculty of Law
• Subjects: Humanities, Multidisciplinary; International sales; Law; Private regulation; Sustainable development; international sales; sustainable development; Private regulation
• ISSN: 1028-1053; 2077-4907; 2077-4907
• DOI: 10.17159/2077-4907/2020/ldd.v24.2

This article argues that modern international sales law has a hybrid character as it increasingly makes provision for interfaces between public and private, State and non-State, hard and soft , law. Although private forms of regulation are often associated with the lex mercatoria, this article shows that they rarely reflect or constitute mercantile custom or trade usage. However, they often address issues that State law does not. As a result, these forms of regulation have become an effective tool in supply chains, especially in the context of sustainable development. Whether private forms of regulation constitute law is a matter for debate, though. This article concludes that in the context of international sales, private forms of regulation mostly obtain their legitimacy through contract, which “hardens” them into law.