Introduction: Reimagining Lex Mercatoria

This special section comes at an overtly challenging time. Over the past few years, we have seen the global economic crisis, Brexit, the election of an "economic nationalist" Donald Trump as US president, and radical leaps forward in the digital sphere, disrupting all kinds of commercial and political relationships. We also continue to see conflict and violence across North Africa and the Middle East dominating our Facebook news feeds. Yet people are still doing business across borders. Business people are still meeting on factory floors, in bars, and in of ces making deals because of, or despite, this tumult. They do this with people who speak their language and those who do not. They make deals with people of the same faith and those whose faith they do not understand or even care for.

Essentially, trade and business continues despite global tumult. Lawyers are facilitating these transactions by documenting them, ensuring regulatory compliance and resolving disputes as they arise.¹ These lawyers apply domestic, international, and privatized laws and rules. Consequently, this special section comes together to consider a body of law, lex mercatoria, or the law of merchants, which provides an overarching legal fiction that practitioners use to facilitate these transnational and cross-cultural legal interactions.² This article and the other articles in this special section engage with how people, capital, and laws cross borders and, simultaneously, hit the friction of these boundaries.

In engaging with this complicated contemporary reality, the following contributions seek to consider the historical antecedents to the present circumstances. These articles will allow readers to recognize how the current legal environment is embedded in an intellectual lineage. Neilesh Bose and Victor V. Ramraj's contribution and Hassan Khalilieh's articles engage with lex mercatoria from this historical perspective, allowing us to reimagine this legal concept with a tangible resonance for our contemporary times.

When investigating lex mercatoria, it is necessary to imagine modes of legal activity and fictions that can be applied across, of en simultaneously, diverse legal systems and cultures.³ The dif culty with these discussions is that it requires us to reconsider how we interpret laws and rules. In doing this we place into question the way we understand crucial legal concepts, such as sovereignty and jurisdiction. These concepts become complicated in a legal environment that cannot be confined strictly to state borders and are implicitly transsystemic in that these legal regimes function in parallel and naturally overlap through social, physical, and digital infrastructure.⁴

In this introduction, I want to focus on some key concepts and definitional issues that will act as a pathway into the special section. Lex mercatoria, it would be my contention, is playing an increasingly significant role within the body politics of Asia and the Middle East today, although for too long it has gone unrecognized. The concept's importance is that it reflects a "legal fiction," an idea behind a body of law that provides globalization with a nuanced legal meaning.

The Theater of a Legal Fiction

When did lex mercatoria emerge on my radar? My personal encounter with this legal fiction dates back to when I was at law school preparing for the Willem C. Vis International Commercial Arbitration Moot in Vienna. This concept was not part of my law school's curriculum but as I prepared for this moot, its omission became an obvious blind spot. Then af er this brief, albeit intense encounter with the idea, it disappeared from my consciousness almost entirely. It only reemerged for me in a bookstore in Vietnam several years later as I thumbed through a copy of Shakespeare's Merchant of Venice. I remember reading Shylock, and was struck by some of the Venetian Jewish trader's words. Let me quote the words to you:

Then meet me forthwith at the notary's,Give him direction for this merry bond,And I will go and pursue the ducats straight.⁵

Honestly, in most circumstances these words would be unremarkable. These few lines of the Merchant of Venice, however, initiated the debt that lies at the crux of this Shakespearian tragedy. These sentences from the Merchant...