4. The foundation for transnational private contract law, arbitration

The market economy drive perpetuating economic globalisation is also active in the development and choice of transnational legal solutions. The potential reward, international sets of contract rules and principles, that can be counted on to be consistent and as providing a uniform layer of insulation (with minimal reference back to State law) when applied across the landscape of a multitude of different municipal legal systems. The business community is free to utilise them if available, and if not, to develop them, or seek to have them developed.

The kernel for the development of a transnational legal infrastructure governing the rights and obligations of private contracting individuals was put in place as far back as 1958 by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“NY Convention on ICA”), ²⁵ now in force in over a hundred States. Together with freedom of contract, the NY Convention on ICA made it possible for commercial parties to develop and be governed by their own lex in their contractual affairs, should they wish to do so, and guaranteed that provided their agreement was based on international commercial arbitration (“ICA”), (and not against relevant mandatory law) it would be enforced in all contracting States. This has been given further support by various more recent arbitration rules and the UNCITRAL Model Law on International Commercial Arbitration 1985, ²⁶ which now explicitly state that rule based solutions independent of national law can be applied in “ICA”. ²⁷

“ICA” is recognised as the most prevalent means of dispute resolution in international commerce. Unlike litigation “ICA” survives on its merits as a commercial service to provide for the needs of the business community. ²⁸ It has consequently been more dynamic than national judiciaries, in adjusting to the changing requirements of businessmen. Its institutions are quicker to adapt and innovate, including the ability to cater for transnational contracts. “ICA”, in taking its mandate from and giving effect to the will of the parties, provides them with greater flexibility and frees them from many of the limitations of municipal law. ²⁹

In sum, a transnational/non-national regulatory order governing the contractual rights and obligations of private individuals is made possible by: *(a)* States' acceptance of freedom of contract (public policy excepted); *(b)* Sanctity of contract embodied in the principle pacta sunt servanda *(c)* Written contractual selection of dispute resolution by international commercial arbitration, whether ad hoc or institutional, usually under internationally accepted arbitration rules; *(d)* Guaranteed enforcement, arbitration where necessary borrowing the State apparatus for law enforcement through the NY Convention on ICA, which has secured for “ICA” a recognition and enforcement regime unparalleled by municipal courts in well over a hundred contracting States; *(e)* Transnational effect or non-nationality being achievable through “ICA” accepting the parties' ability to select the basis upon which the dispute would be resolved outside municipal law, such as through the selection of general principles of law or lex mercatoria, or calling upon the arbitrators to act as amiable compositeur or ex aequo et bono.

This framework provided by “ICA” opened the door for the modelling of effective transnational law default rules and principles for contracts independent of State participation (in their development, application, or choice of law foundation). Today we have an increased amount of certainty of content and better control over the desired degree of transnational effect or non-nationality with the availability of comprehensive insulating rules and principles such as the PICC or Principles of European Contract Law (“European Principles” or “PECL”) that may be chosen, either together with, or to the exclusion of a choice of municipal law as governing the contract. For electronic commerce a similar path is hypothetically possible.