CYIL vol. 16 (2025)

CYIL 16 (2025) NON-STATE RULES: A GLOBALISED APPROACH FOR TRANSNATIONAL COMMERCIAL… of its codified components, especially under the UNIDROIT Principles of International Commercial Contracts. The UPICC preamble clearly suggests a number of purposes which this instrument could pursue: 56 they could serve as a restatement of law (§ 1 of the preamble of the Unidroit Principles of Commercial Contracts), it could be used as a model law for national and international legislators and as a guide for contracts by private parties (§ 5–7 of the preamble), it may be applied as applicable norm, when selected by the parties or in absence of an applicable law (§ 2–4 of the preamble), and finally they could serve as a background law. 57 Other instruments, add new functions and purposes the list, such as that of an “optional” instrument, 58 a mean for a better interpretation of domestic law or contractual terms, An educational resource for European, comparative, and domestic contract law 59 or a cornerstone for the upcoming process of harmonization and unification of commercial contract law. 60 Focusing on its function as applicable law, under private international law and considering only litigation, the choice of non-state law as an applicable law is seldom permitted and the parties’ freedom of choice is limited to a domestic law. 61 Therefore non-state law, especially its codified element, can be only incorporated by reference in the contract and has the same strength of a contract term. 62 Domestic private international law frameworks 63 rarely permit the application of non-state law as the governing law in transnational commercial disputes, and only few states allow for non-state law to be applied in litigation as a governing law in transnational commercial transactions. 64 Nonetheless, select case law reveals a modest but emerging willingness among national courts to consider its application. 65 56 VOGENAUER, S., KLEINHEISTERKAMP, J., Commentary On The UNIDROIT Principles Of International Commercial Contracts (PICC) , International Institute For The Unification Of Private Law Eds., 2nd Edition., 2015, p. 36. 57 VOGENAUER, S., KLEINHEISTERKAMP, J., supra note 56, p. 39. In the commentary, it is stated that the PICC play the role of a “general part” of the transnational law of obligations, by being incomplete and leaving space for domestic legislation, mandatory rules and party autonomy to integrate, complete and fill the contract. 58 This concept was first officially mentioned in the Green Paper of the European Commission on European Contract Law (European Contract Law COM(2010) 348 (publ. 07.02.2014)) and aimed at the creation of a common instrument to be applicable as governing law; see also WHITTAKER, S., The Optional Instrument of European Contract Law and Freedom of Contract, 2011, European Review of Contract Law . The project eventually failed, and the idea of a common European Contract Law was abandoned. 59 VOGENAUER, S., Common Frame of Reference and UNIDROIT Principles of International Commercial Contracts: Coexistence, Competition, or Overkill of Soft Law?, in European Review of Contract Law , Vol. 6, No. 2 (2010), p. 149. 60 GARRO, A.M., supra note 46, p. 42. 61 GOODE, R., supra note 13, p. 2. 62 BONELL, M.J., The CISG, European Contract Law and the Development of a World Contract Law, in The American Journal of Comparative Law , 2008, p. 23 . 63 MICHAELS, R., The UNIDROIT Principles as Global Background Law, in Uniform Law Review – Revue de droit uniforme, 2014, p. 663. 64 Some authors believe that the domestic law of Oregon and Louisiana does allow parties to elect non-State law to govern their contracts. See SYMEONIDES, S. C., Contracts Subject to Non-State Norms, 54 American Journal of Comparative Law 209, 221–22 (2006). Furthermore, also Paraguayan Law allows for the choice of non-state law as a governing law. See BONELL, M.J., supra note 26, pp. 27 and following. 65 BONELL, M.J., supra note 26, pp. 25 and following provides few examples of case law that are the expression of this tendency.

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