The UNIDROIT Principles and Transnational Law

Abstract

Summing up the results of an in-depth analysis of the so-called lex mercatoria, Felix DASSER observed that the real question is not “lex mercatoria: yes or no?” but “lex mercatoria: when and how?” 1 In other words, fascinating as it may be to discuss whether the modern lex mercatoria represents a veritable legal order different from and independent of the various domestic laws on the one side and public international law on the other, what ultimately matters is the extent to which States nowadays permit parties to an international commercial contract, by referring to the lex mercatoria, to escape the application of any domestic law. What has been said of the lex mercatoria may well be applied to “transnational law” in general, i.e. to all kinds of principles and rules of non-national or a-national character used in international business practice as an alternative to domestic law. And indeed the International Law Association, on the occasion of an in-depth study of the role of transnational rules in international commercial arbitration carried out in the early 1990s, quite rightly devoted little if any attention to the theoretical question of the precise nature of such rules and whether they represent an independent legal order, and focused on the eminently practical issue of the validity and enforceability of awards based on transnational law in domestic courts.2 Whether the UNIDROIT Principles of International Commercial Contracts are part of transnational law depends of course on the meaning one intends to give to this latter notion. If one adopts a narrow definition whereby transnational law basically consists of generally recognised principles of law and trade usages, it may be difficult to consider the UNIDROIT Principles as a whole as falling in one category or the other.