fulfilling the contract, Atiyah claims. In turn, the executory contract, which
focused on intended future performances, marked the shift to classical contract
theory, as the earlier doctrine had operated mostly on the concept of completed
(executed) contract, i.e. what the parties had done. However, modern doctrine
makes a distinction between present and future consent and limits the binding
nature of the latter. For example, the possibility of cancelling a binding contract
is nowadays considered an integral part of life insurances, several continuous
consumer contracts and the sale of goods. Also, contracts on entering marriage
are no longer considered binding in the future, a development linked with easier
divorce.
17 In addition to and following this, contracts have lost their role as
instruments of risk allocation, as protection of future expectations is no longer
focal to contractual relationships.
18
Atiyah’s analysis of the emergence and downfall of consent reveals that private
autonomy is a relatively new concept in comparison with sovereignty, as the latter
dates back to the sixteenth and seventeenth centuries. Although consent has
suffered from the loss of importance, it is still a central concept of law. It could
be claimed that, instead of its demise, or in addition to it, consensuality has
expanded outside its origins in contractual law, to other fields of law, e.g. public
administrative law, family law and procedural law. Similarly to what Mutanen and
Castells have pointed out about the longevity of sovereignty and the nation-state,
consent has proved to travel well across disciplinary boundaries and to be
exceptionally durable.
In the following section, the role of consent in dispute resolution is evaluated.
Before this, one last general remark on the evolution of consent needs to be
addressed, namely the emerging private regime of a new lex mercatoria, as
proponents of this tradition consider it a solution for private regimes, a model
of contractual networks for an a-national but global, autonomous legal order
with its own institutions and without connecting points to the legal systems of
the nation-states. Allegedly, this uniform regime can be found in international
commercial arbitration and global governance of international commerce.
19
According to Calliess, the new lex mercatoria draws credibility for its neo-liberal
agenda from an interpretation of the medieval lex mercatoria as an autonomous
legal system co-existing with the domestic public courts. Opponents of the new lex
mercatoria have claimed the opposite: that the ancient merchant law was not an
autonomous legal system but a hybrid of public and private elements. As Calliess
points out, it is impossible to cover the exact content of this medieval merchant
law, as historical sources are scarce and open to various interpretations. The ancient
lex mercatoria had its origins in the medieval commercial revolution, which
resulted in the self-governance of market towns, specialised market courts often
headed by town officials, general enforcement of informal contracts, and the
creation of some customary rules on debt collection. Later on, the growing state
agenda of the nation-state led to the seizure of jurisdiction in commercial cases and
to the codification of customary law.
20
Based on this assessment, Calliess evaluates the extent to which the new lex
mercatoria in fact redeems the promise of being a uniform, a-national legal
Consent and private autonomy 147
focused on intended future performances, marked the shift to classical contract
theory, as the earlier doctrine had operated mostly on the concept of completed
(executed) contract, i.e. what the parties had done. However, modern doctrine
makes a distinction between present and future consent and limits the binding
nature of the latter. For example, the possibility of cancelling a binding contract
is nowadays considered an integral part of life insurances, several continuous
consumer contracts and the sale of goods. Also, contracts on entering marriage
are no longer considered binding in the future, a development linked with easier
divorce.
17 In addition to and following this, contracts have lost their role as
instruments of risk allocation, as protection of future expectations is no longer
focal to contractual relationships.
18
Atiyah’s analysis of the emergence and downfall of consent reveals that private
autonomy is a relatively new concept in comparison with sovereignty, as the latter
dates back to the sixteenth and seventeenth centuries. Although consent has
suffered from the loss of importance, it is still a central concept of law. It could
be claimed that, instead of its demise, or in addition to it, consensuality has
expanded outside its origins in contractual law, to other fields of law, e.g. public
administrative law, family law and procedural law. Similarly to what Mutanen and
Castells have pointed out about the longevity of sovereignty and the nation-state,
consent has proved to travel well across disciplinary boundaries and to be
exceptionally durable.
In the following section, the role of consent in dispute resolution is evaluated.
Before this, one last general remark on the evolution of consent needs to be
addressed, namely the emerging private regime of a new lex mercatoria, as
proponents of this tradition consider it a solution for private regimes, a model
of contractual networks for an a-national but global, autonomous legal order
with its own institutions and without connecting points to the legal systems of
the nation-states. Allegedly, this uniform regime can be found in international
commercial arbitration and global governance of international commerce.
19
According to Calliess, the new lex mercatoria draws credibility for its neo-liberal
agenda from an interpretation of the medieval lex mercatoria as an autonomous
legal system co-existing with the domestic public courts. Opponents of the new lex
mercatoria have claimed the opposite: that the ancient merchant law was not an
autonomous legal system but a hybrid of public and private elements. As Calliess
points out, it is impossible to cover the exact content of this medieval merchant
law, as historical sources are scarce and open to various interpretations. The ancient
lex mercatoria had its origins in the medieval commercial revolution, which
resulted in the self-governance of market towns, specialised market courts often
headed by town officials, general enforcement of informal contracts, and the
creation of some customary rules on debt collection. Later on, the growing state
agenda of the nation-state led to the seizure of jurisdiction in commercial cases and
to the codification of customary law.
20
Based on this assessment, Calliess evaluates the extent to which the new lex
mercatoria in fact redeems the promise of being a uniform, a-national legal
Consent and private autonomy 147