Non-national Rules and Conflicts of Laws

This paper analyzes the rationale of the theory, which prevals in most conflicts of laws systems, including the Rome I Regulation, that non-national rules cannot be applied by courts as the governing law of contracts. The paper begins with an analysis of the case law of domestic courts on the application of the Unidroit Principles and concludes that courts increasingly hold that the Principles can be relevant to the solution of issues before them. It then goes on to analyze the traditional reasons for the hostility of national legal systems and of many authors towards the application of such rules qua lex causae and concludes that they are unfounded. In particular the fragility of the belief that such a solution is needed to preserve the application of mandatory rules is exposed, as is the myth of the aptitude of national systems to provide predictable and satisfactory solutions in all cases. The author particularly criticizes the solution of Regulation Rome I and finds that the one adopted by the Hague Principles on Choice of Law in International Commercial Contracts is more modern and in keeping with the needs of the business community. The author also discusses the relative merits of national law and non-national rules to govern contracts and concludes that, whilst in many cases national law may be preferable, there are many situations where non-national rules, and notably the Unidroit Principles, may prove preferable.