Densidade jurídica da lex mercatoria e suas formas de materialização no direito do petróleo e gás: o princípio da imunidade de jurisdição, o instituto da arbitragem comercial internacional e a formulação da lex petrolea

Abstract

The scope of this dissertation is to present lex mercatoria from the standpoint of its sources and ways of legal embodiment. Hence, it is essential to expose and develop the concept of lex mercatoria, considering: (i) its historical perspective, as the result of customary rules existing in international trade, and (ii) the acceptance of general principles of law and international trade practices by their agents, mainly through existing international instruments by which the lex mercatoria reaches out its fullest implementation. We encompass the correlations between lex mercatoria and The Conflict of Laws, conceptualizing the disciplines of International Trade Law and Transnational Law and regarding it as an autonomous legal branch. In the study of international contracts, we analyze the international contracts and their typical standard clauses, as well as the wide acceptance of lex mercatoria principles by Conventional Law. Furthermore, we have reviewed the principle of State immunity and its relativization, through the distinction between the doctrinal and case-law criterion of classifying State activities as acta jure imperii and acta jure gestionis, to the point where it stands for the needs of international trade. Then, we have conducted a case study in the oil and gas sector in the United States, distinguishing that principle from the "Act of State Doctrine," another construction of North-American Case Law. We also examined the institute of international commercial arbitration in international contracts by the adoption of the arbitration clause and its applicability in State contracts, besides its interrelation with the Sovereign immunity principle. In that instance, we have presented some considerations about arbitration in Oil & Gas Law and consequently our view on the legal nature of the concession agreement for exploration, development and production of oil and gas in Brazil, as well as a proposed amendment to the draft clause "Legal Framework". We discuss the creation of lex petrolea and its relation to lex mercatoria. Thus, we develop the scope of Oil & Gas Law, including a detailed analysis of the types of international State contracts in the oil & gas industry. Finally, we explore the necessary interactions between lex petrolea and Public International Law, in the wake of a necessary two-way balance between them.