CYIL vol. 16 (2025)

CYIL 16 (2025) NON-STATE RULES: A GLOBALISED APPROACH FOR TRANSNATIONAL COMMERCIAL… 1. Introduction Globalization is a very well-known, but hard to define concept and it is intrinsically connected to the modern theory of transnational commercial law. This phenomenon is altering the law making processes and transforming the relationship between normative and sub-normative systems, by determining the birth of multiple centres of power and consequentially the creation of supranational normative regimes and subsystems. 1 To put it into simple terms, Globalization is the idea of “ Economic, financial, trade, and communications integration moving worldwide ”, 2 a very general definition, which nevertheless provides a good starting point to help us understand why an increasing number of non-state actors are becoming more and more relevant in the law-making process and in the redefinition and development of a transitional commercial law. Private codifications and academic restatements are maybe the most evident example of the shift of power – from the state towards the global institutions and the private sphere – which is occurring in the current globalized society to fulfil the immanent need of a set of rules to enable modern economic actors to overcome legal cultural differences and transcend geographic borders. 3 This obstacle becomes more and more relevant with the spread of globalization, albeit with the increase of economic relationships among citizens of different countries and, above all, among enterprises that are involved in transnational commerce and have to face the difficulties of dealing with different systems and foreign legal cultures. 4 Therefore, private institutions, international organizations and academic groups have tried, in the past half a century, to answer the market need for transitional regulation, by becoming “ creators and shapers of law ” 5 themselves, thus giving rise to the phenomenon of privatization of law, and the creation of a modern non-state law. In this scenario, the State is not the sole owner of the law-making process and this power is being shattered and exercised by various communities, 6 above all, the merchant community, which has been spontaneously developing a transnational body of commercial rules (the so called lex mercatoria ) to answer and accommodate the needs of the market. This trend finds a perfect lodging within the framework of global legal pluralism, which asserts the presence of diverse legal systems originating from both state entities and non-state collectives. 7 Even though the literature has stressed many times that independent institution assuming a law making role is not a novelty, 8 it is important to understand the consequences of the rise of 1 DEL ÁNGEL IGLESIAS VÁZQUEZ, M., Globalización, Globalización Jurídica, Global Law y Derecho Internacional Privado = Globalization, Legal Globalization, Global Law and Private International Law, in Cuad. derecho transnac. , 2017, p. 218. 2 GLOBALIZATION Definition & Legal Meaning, in Your Free Online Legal Dictionary • Featuring Black’s Law Dictionary, 2nd Ed., https://thelawdictionary.org/globalization/#:~:text=GLOBALIZATION%20 Definition%20%26%20Legal%20Meaning&text=Economic%2C%20financial%2C%20trade%2C%20 and%20communications%20integration%20moving%20worldwide. 3 FERRARI, F., PIL and CISG: Friends or Foes?, in Internationales Handelsrecht , 2012, p. 90 https://www. degruyter.com/document/doi/10.1515/ihr.2012.12.3.89/html (last visited May 11, 2024). 4 GALGANO, F., Il diritto uniforme: la vendita internazionale, in Atlante di diritto privato comparato , 2011, Zanichelli, 5th ed, 5 MICHAELS, R., JANSEN, N., Private Law Beyond the State? Europeanization, Globalization, Privatization*, in The American Journal of Comparative Law , 2006, p. 868. 6 MICHAELS, R., The Re-State-Ment of Non-State Law: The State, Choice of Law, and the Challenge From Global Legal Pluralism, in The Wayne Law Review, 2005, p. 1212. 7 MICHAELS, R., supra note 6. 8 BERMAN, P. S., From International Law to Law and Globalization, in The Columbia journal of transnational law , 2005, pp. 508–509.

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