CYIL vol. 16 (2025)

ELISA ARIETTI and consensus of the international community lean onto non-state law principles and rules to seek legitimacy not only in the national and domestic sphere but also in the transnational one. 104 Lastly, as we mentioned above, non-state law can be incorporated by the parties as a contractual term even by reference, thus giving effect to the desired rules through the contract itself. This can undoubtedly lead to great advantages both for the parties in terms of flexibility, specialization and legal costs, and for international harmonization, since non state law gains more and more authority with its recurring use and application. When the parties decide to incorporate non-state law, and specifically its codified elements, into the contract they gain force of law and become binding under the applicable national law, 105 within the limits of public policy and mandatory rules and they prevail on non-mandatory domestic rules. This allows the parties to “delocalize” the contract to the transnational sphere, while detaching it from national law, 106 which can be unfit to address certain issues under international commercial law. 107 4. Future prospects under the light of globalization and the advantages of non-state law application Regardless of the possibility to apply them as a governing law of the contract, as an instrument to interpret and integrate domestic law or as incorporated contractual terms, non-state law rules, and especially the codifications promoted by the international organizations, such as the UPICC, the PECLs and the CISG, are an essential instrument under international commercial law. Their application and use continuously enhances and strengthen their legal authority and their influence in transnational transactions. If we look at their actual application, the numbers, even though notoriously imprecise, are yet not particularly relevant. 108 While the data may be discouraging, given the significant influence and potential role of these rules in harmonizing international commercial law, it is essential to move beyond the numbers and continue efforts to promote their adoption. We believe that enhancing the use and application of non-state rules can be achieved through legal education, research, and codification, which would improve the credibility of these instruments, increase legal certainty, and raise awareness of their numerous advantages.

relevant subjects. This could be connected to the peculiarity of this field, the recognised authority of the organisations or agency which issue such instruments and the pressing need for harmonisation.

104 HOEKSTRA, J., supra note 9. 105 GOODE, R., supra note 13, p. 5. 106 HOEKSTRA, J., supra note 9.

107 To encourage the practice of incorporation, UNIDROIT has issued the following model clause for the parties to reference the UPICC in their contract: “ The UNIDROIT Principles of International Commercial Contracts (2016) are incorporated in this contract to the extent that they are not inconsistent with the other terms of the contract .” 108 https://www.unilex.info/main/about The UNILEX Database “is an “intelligent” database of international case law and bibliography on the UNIDROIT Principles of International Commercial Contracts and on the United Nations Convention on Contracts for the International Sale of Goods (CISG) – two of the most important international instruments for the regulation of international commercial transactions.” From the “About Unilex” section on the UNILEX website. On the UNILEX Database the number of reported cases on UPICC are not particularly high: there are 5 cases reported in 2023, 13 cases in 2022, 7 cases in 2021, 13 cases in 2020, 11 cases in 2019 and 10 cases in 2018.

480