Article by Kazuaki Sono
There has been a resurgence of the rule of reason in contract law at a delocalized level. This resurgence has cultivated and developed its general principles particularly from international commercial arbitration, in which resort is often made to “the general principles of law.” These basic principles are now becoming clearer. This increasing clarity has been greatly prompted by the success and increasing popularity of the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG), which enshrined in it a set of basic contract law principles that were agreed upon at the global level as suitable for international contracts. Now we have the UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law, which were clearly influenced by the CISG, both in substance and in basic aspirations. Together with the CISG, they form an emerging jus commune and “the gospels for the future world law of contract” in the words of Professor Lando. As he indicates, international business is becoming a cultural circle of its own. Lawyers from various parts of the world are also in the process of becoming a world community of lawyers.
Most international transactions were, until recently, under the sovereign jurisdictional control of individual nations one way or another. When we spoke of the law of contract, the reference was to a national law. Rights could be acquired only under a national law. The traditional conflict-of-law approach began with the premise that state law controls civil life. Based on the philosophy underlying the freedom of contract, it has been well established that parties are free to agree on the applicable law, but this logic was also restricted by the sovereign-based order. The 1980 European Convention on the Law Applicable to Contractual Obligations (the Rome Convention), although progressive in other respects, still confined the possible choice of contract law to national laws. Article 1(1) provided that the Convention governed the “choice between the laws of different countries.”
However, the age of independence, or even interdependence, has already gone, and we are now in a mutually pervasive age, where national boundaries lose their meaning. For a global legal order to be established to govern business transactions “ignorant” of national boundaries, such a legal order must first free the business world from the dogmas that heretofore have shaped the traditional localized orders. This calls for a resurgence of the rule of reason at a delocalized level, away from sovereign-based legal positivism. This inclination also corresponds to the increasing popularity of the notion of jus cogens in the public international law, in which the so-called soft laws are gaining strength.
About the Author
Kazuaki Sono. Dean and Professor of Law, Faculty of Law & Policy, Tezukayama University, Nara; Professor Emeritus, Hokkaido University, Sapporo; Secretary of the United Nations Commission on International Trade Law (UNCITRAL) and Chief of the International Trade Law Branch, Office of Legal Affairs, United Nations, 1980-1985; Assistant General Counsel of the International Monetary Fund (IMF) in charge of policy matters, 1990-1993. LL.M., Kansai University; J.D., University of Washington.
Citation
75 Tul. L. Rev. 1185 (2001)