Jump to ContentJump to Main Navigation
The Making of Legal AuthorityNon-legislative Codifications in Historical and Comparative Perspective$

Nils Jansen

Print publication date: 2010

Print ISBN-13: 9780199588763

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780199588763.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use.  Subscriber: null; date: 20 January 2020

Non-Legislative Codifications in Modern Law

Non-Legislative Codifications in Modern Law

Chapter:
(p.50) Chapter 2 Non-Legislative Codifications in Modern Law
Source:
The Making of Legal Authority
Author(s):

Nils Jansen

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199588763.003.0003

Abstract and Keywords

The American Restatements of the law have become a major textual authority of the American common law. Today, large parts of the law have been restated, and the Restatements are taken by the participants to the legal discourse as a valid expression of the law. This chapter shows that the American restatement approach has also influenced the developments of transnational restatements of the law. The International Institute for the Unification of Private Law (UNIDROIT) has largely applied the terminology and formal style of the American Restatements for its Principles of International Commercial Contracts; and a similar approach was taken, on the European level, by the Lando Commission on European Contract Law. Today, the Restatements' formal style is used by the Study Group on a European Civil Code and by the Acquis Group, the main non-legislative actors in the current political process of unifying European private law.

Keywords:   American restatements, legislative codifications, legal texts, European contract law, International Institute for the Unification of Private Law

All these observations help to better understand and historically situate non-legislative codifications in the present. The most important of such reference texts are the American Restatements of the law, which have become a major textual authority of the American common law. Today, large parts of the law have been restated, and the Restatements are taken by the participants to the legal discourse as a valid expression of the law. During the last decades, the American restatement approach has also influenced the developments of transnational restatements of the law. The International Institute for the Unification of Private Law (UNIDROIT) has largely applied the terminology and formal style of the American Restatements for its Principles of International Commercial Contracts; 1 and a similar approach was taken, on the European level, by the Lando Commission on European Contract Law. 2 Today, the Restatements’ formal style is used by the Study Group on a European Civil Code 3 and by the Acquis Group, 4 the main non-legislative actors in the current political process of unifying European private law.

I. The American Restatements of the Law

Historically, the Restatements were a specific answer to peculiar problems of the American common law at the beginning of the 20th (p.51) century. 5 ‘There is today general dissatisfaction with the administration of justice’: this was the introductory sentence of a report of a Committee of 35 leading jurists on the establishment of an American Law Institute. 6 As the report emphasized, this dissatisfaction was not confined to the ‘radical section of the community’: ‘the opinion that the law is unnecessarily uncertain and complex, that many of its rules do not work well in practice, and that its administration often results not in justice, but in injustice, is general among all classes and among persons of widely divergent political and social opinions’.

Indeed, influential American scholars had earlier pronounced similar views 7 arguing for a more scientific and systematic treatment of the law. 8 Similarly, an earlier report, which had been commissioned by the American Bar Association, had shown that already in 1885 about one-half of the cases reaching appellate courts were reversed. 9 Thus, according to the Committee proposing the establishment of the American Law Institute, lawyers felt more and more lost in the mass of published decisions. The common law had become so complex and unclear that its reliability seemed seriously endangered, and an increasing amount of unsystematic and often contradictory statutory legislation substantially contributed to this state of affairs. 10 Altogether, the American legal system was felt to be (p.52) standing ‘indicted for uncertainty’. 11 Academic treatises, which had for a long time been regarded as sufficient authority for intellectually integrating the common law, had lost their former status. According to the Committee proposing the establishment of the American Law Institute, most of these treatises were of poor quality, as their authors were lost in the collection and examination of the quickly growing case law. Thus, the scholars’ contribution to the legal system no longer contained the constructive analysis that was regarded as necessary for unifying and improving the law. 12 At the same time, attempts in the 19th century to systematize and clarify the law by means of civil codes had failed. 13 Thus, the Restatements must be seen in the context of these codification debates. 14 They should authoritatively systematize the law.

Another point of concern was that the formerly unified, ‘common’ English-American common law was felt to be breaking into parts. 15 Indeed, leading judges in the US Supreme Court had emphasized that the common law was no ‘brooding omnipresence in the sky’ but would always relate to some sovereign authority. 16 It was obvious that the single states’ common laws developed in diverse directions, yet often for no good reason. This was a development, which the legal profession was obviously not prepared to accept. Indeed, scholars had argued that the appropriate subject for legal education and theory was only ‘a common law which is not the particular law of any single jurisdiction’. 17 Likewise, the Committee (p.53) proposing the establishment of the American Law Institute felt that the common law should in principle develop homogenously and as a unity. 18

1. Making legal authority

The Restatements were designed as a means of overcoming this unsatisfactory state of the legal system while at the same time preserving the flexibility of the common law. 19 They were meant to ‘make certain much that is now uncertain and to simplify unnecessary complexities, but also to promote those changes which will tend better to adapt the laws to the needs of life’. Hence, the Restatements should be ‘at once analytical, critical and constructive’. 20 It followed, first, that the Restatements should have an intellectual order that made them easily accessible. However, they should not be as rigidly systematized as European codifications; in this respect, the Restatements are a counter-model to the European codifications. 21 Secondly, the founders of the American Law Institute were of the strong opinion that the Restatements should not be adopted by statute: 22 the Restatements were meant to clarify and structure, yet not to ossify the law. Judges were therefore not assumed to be formally bound by the Restatements; rather they were to retain discretion whether to follow them in a specific case. This would allow the Restatements to be much more detailed and precise than a European codification could be.

(p.54) Nevertheless, the Restatements were from early on designed to become authoritative texts in themselves. Although they should be ‘less than a code’, they were clearly meant to be ‘more than a treatise’. 23 From the very beginning of the project, it was clear that the Restatements, ‘even though … not … formally adopted by legislatures’ should be given ‘such authority as is now accorded a prior decision of the highest court of the jurisdiction’. 24 The general understanding was that the Restatements could otherwise not achieve what was regarded as their most important purpose: that they made the law accessible to a professional lawyer without the need for consulting further authority. 25

In view of this programme, the Restatements have been a remarkable success. Their status as a highly authoritative source of the law, even if remarkably rarely discussed explicitly, cannot be doubted. Already by 1934, the American Law Institute could show that the Restatements had been applied as authorities in hundreds of judicial decisions. 26 Their use as an ultimate source of the law 27 by the courts soon became pervasive; 28 and the Restatements are widely taken as the basic reference texts for the purpose of academic teaching. 29 Indeed, leading textbook authors had actively participated in the restatement process; from early on, they characterized the Restatements’ authority as comparable to ‘a statement by the highest court of a state … In other words it is presumably a true statement of the law’. 30 Thus, today, ‘[b]y and large, if the Restatement states the rule, that is the end’ of legal argument: 31 the Restatements are treated as a legal authority for which no further (p.55) support is necessary. Thus, courts apparently applied the Restatement (Second) of Contracts like a statute, i.e. without further argument, even in cases where this amounted to a deviation from earlier law. 32 Indeed, the Institute has become an object of pressure group lobbying; 33 this shows that the Restatements have achieved a degree of legal authority which is comparable to that of Parliamentarian legislation.

American writers have always emphasized that the Restatements must not be regarded as strictly binding; they do not have ‘the force of a code’. 34 Courts are of course free to deviate from a restatement’s particular provision; and if a restatement introduces a substantially new rule, this will not always be accepted in all jurisdictions. A telling and well-known example can be seen in the history of American product liability. Here, § 402A of the Restatement (Second) of the Law of Torts introduced a strict products liability regime, although this had previously been the law only in a very small number of states. 35 Nevertheless, the rule was soon regarded as good law in most American jurisdictions. 36 Yet, when the Institute introduced a more restrictive approach in the Restatement (Third) of Torts: Products Liability, this was widely criticized by academic writers and has not been consistently applied by the courts. 37

Nevertheless, even in those areas where the Restatements did not actually unify the law in substance, they have at least achieved a high degree of intellectual unity. 38 From early on, the American Law Institute had published ‘Annotations’ that described the single state's law in terms of compliance with, or divergence from, the respective restatement's provisions; 39 in the course of the century (p.56) such annotations were produced for most states and nearly all restatements. Moreover, in some early instances, the Restatements’ reporters even wrote textbooks that were designed as a commentary to the relevant restatement. 40 Thus, the American Restatements of the Law achieved a status that is comparable to that of the Roman Corpus iuris civilis as the main reference text of the ius commune. 41 In most states, they are recognized as non-legislative and supra-jurisdictional sources of the law. As a result, they have become the intellectual backbone of what may be conceived of as a national American common law. 42 Intellectually and to a large degree also in terms of substance, the Restatements continue to unify and integrate the different American common laws into one national legal system. While it is true that during the last decades there have been signs of their authority being in decline, 43 for most of the 20th century they have contributed constructively and innovatively to the law's development.

2. Tradition and innovation

A central question had from early on been whether the Restatements should be purely descriptive or also prescriptive in approach. 44 (p.57) Whereas some authors criticized the Restatements for being too conservative and describing the law as it was instead of the law as it should be developed, 45 other critics accused its drafters for taking too much of a political approach presenting desired rules instead of the actual state of the law. 46 The fundamental question had already been a subject of the debates during the American Law Institute's foundation; 47 and it was also addressed in the report of the Committee of 35. This report presented a clear programme which was based on the feeling that ‘law must be stable, and yet it cannot stand still’. 48 Hence, the approach should be basically descriptive, but this should not preclude prescriptive and even innovative elements from the restatement. 49

Clearly, prescriptive decisions had to be made where the Restatements were to lay down a clear rule, even though the question of the law was reasonably disputed. 50 Indeed, even a prima vista purely doctrinal issue, such as the assignment of a particular question to the heading of ‘duty of care’ or ‘breach of duty’ may be political in effect, as it determines whether the question is decided by the judge or by the jury. 51 What is more, the American Law Institute has always seen the Restatements as a means of promoting (p.58) legal change: 52 if it was possible to reasonably predict the future development of the law, this should be laid down in the rules. Only in disputed ‘matters of general public concern and discussion’ was a decision of the a-political, non-governmental Institute regarded as inappropriate; therefore, taxation and fiscal matters were seen to be outside the Institute's ‘competence’. 53

This is not the appropriate place for a detailed discussion on whether the Restatements have in actual fact followed a more conservative, descriptive or a more innovative, prescriptive approach. 54 On the one hand, the approach of the American Law Institute has significantly changed over the years: modern Restatements present themselves more as suggestions for the law's future development by judges than the original Restatements (first). 55 On the other hand, such questions are difficult to measure objectively; hence, they will remain a matter of judgment and political debate. In the present context, it is worth emphasizing, however, that representatives of the Institute have argued, not unconvincingly, that the Restatements’ success depended not least on their blurring the distinction between description and prescription: between the law as it is and the law as it ought to be. As Herbert Wechsler, speaking as the Institute's President, put it: ‘if we ask ourselves what courts will do in fact … can we divorce our answers (p.59) wholly from our view of what they ought to do …?’ 56 Indeed, the American Law Institute could never have become a promoter of legal change if its activity was not regarded by the American legal profession as a—by and large—fair description of the law's development.

II. Non-Legislative Codifications in Europe

All these observations help to explain the present European Common Frame of Reference (CFR) process. This process must be seen both as an attempt by politicians in the European Union to unify and control private law 57—a process, which is open-ended and in the present context of no particular interest—and, at the same time, as a continuation of the Lando process of unifying private law by means of scholarly, non-legislative codifications. The Lando Commission's Principles of European Contract Law (PECL), the first of these modern non-legislative codifications of European private law, have indeed been well-received, and the Lando Commission has found successor groups, such as the European Group on Tort Law, which presented its Principles on European Tort Law in 2005, 58 the Study Group on a European Civil Code (Study Group ECC), 59 and the Research Group on EC Private Law (Acquis Group). 60 Whereas the Study Group ECC is currently publishing a broad range of Principles of European Law, 61 which are supposedly based on a comparison of the (p.60) national private laws in Europe, 62 the Acquis Group has formulated in its Acquis Principles a systematizing compilation of the European Union's acquis communautaire: 63 a body of private law, which is usually not taken into account by the Study Group ECC. 64 What is more, these two groups have together prepared an ‘academic’ Draft Common Frame of Reference (DCFR): 65 a text, which is on the one hand meant to be a draft for a ‘political’ CFR, but on the other hand presents itself as a non-legislative codification of its own authority.

1. The Principles of European Contract Law

At present, the PECL are the only one of those texts, which has already had a chance of standing the test of recognition in legal practice; and leading observers, such as Reinhard Zimmermann and Jan Smits, have praised them as a success. 66 Indeed, the PECL have significantly contributed to the current process of unifying European contract law. Nevertheless, an evaluation on the success of such an international legal instrument is a matter of personal judgment, and it is remarkable that the success of the Vienna Convention on the International Sale of Goods (CISG) has been viewed more critically, 67 although the CISG has been used by many courts in a (p.61) great number of cases, and although it has had a significant impact on the international unification of contract law, too, and not least in Europe.

Clearly, such judgments depend on relevant expectations. Whereas it could be hoped that the CISG might become the normal instrument for international trade, nothing like this could be expected for the PECL. Indeed, being a soft-law instrument, which is not backed by the political authority of a state, the PECL are not normally acknowledged as ‘law’ applicable under choice-of-law rules; this is especially true in Europe. 68 What is more, the PECL were added, or superimposed, onto well-administered national legal systems that are mostly codified and that all have a strong national legal tradition supported by an influential national legal profession. This sharply distinguishes the present situation in Europe from the state of American law in the first half of the 20th century: European legal systems cannot be consolidated or stabilized by the PECL; rather these Principles may be perceived, from an internal, national perspective, as an external irritation. Thus, expectations were lowered from the outset: any influence on a national legal system, which is more than insignificant in effect, must be judged, from the PECL's perspective, as a success.

2. An echo of universalism

If such influence can in fact be perceived today, this may be taken as an indication that there are jurists who feel a need for a European civil code or a comparable, non-legislative reference text. Indeed, this feeling motivated the Lando Commission, a group of comparative law scholars from different European countries, 69 when it began its work in 1982 independently of any governmental mandate. 70 Today, the same motivation can be observed not only (p.62) among the working groups, which continue the Lando process of unifying European private law by means of non-legislative ‘restatements’, but also among political legislators, scholars, and—in some Member States of the European Union—even among judges. Indeed—despite their evident lack of political or ‘democratic’ legitimacy—the PECL have been recognized, even by traditional national scholars, as a ‘source of law’ in a broad sense; 71 and they have even been treated as authoritative reference texts by European courts. 72 Remarkable developments, in this respect, are reported from Spain, where the PECL are used by the Tribunal Supremo and also by lower courts as a driver for change and as an authoritative reference text in a process of modernizing contract law. 73 Similarly, though less spectacularly, the PECL are also beginning to influence actual legal practice in the Netherlands 74 and before the European Court of Justice, where some Advocates General have based their opinions on these Principles. 75 Similar developments can be observed in academia. Here, the PECL are today not seen only as an expression and result of comparative research; moreover, they have become an ‘object of European scholarship’ in themselves. 76 They are a reference text for a new European legal scholarship treating the PECL as a textual authority in themselves. 77

(p.63) The reasons for such developments are easy to see. On the one hand, there is a growing feeling that the nationalized state of private law in Europe is unsatisfactory. True, private law principles often rest on political decisions, and the modern codifications have been conceived of as an expression of a people's identity. 78 But, as in the United States, many of the differences between the national European systems of contract law cannot be explained on the basis of diverging political values or as expressing national identities. Often, they are simply a result of historical accident. Non-legislative codifications may be used as a means of overcoming this type of intellectually irritating difference. To treat European principles as authoritative may lead to a slow convergence of the national legal systems. 79 Thus, legislators often want to overcome an alleged parochial state of national law and therefore wish to draft statutes and codifications in a way that matches the ‘European state of the art’. They may thus be prepared to accept principles of European law as a model. This could be observed already in the context of the German Schuldrechtsreform (reform of the law of obligations, 2001/2002), 80 and it is apparently happening again in the course of the present reform of the French Code civil. In fact, the formulation of national legislative acts is increasingly guided by constitutional, European or other types of supranational law. As a result, modern legislation has become part of the internal legal process. 81 In such complex legal dynamics, non-legislatively carried-out codifications may indeed gain the status of authoritative texts. In constitutional terms, there are fewer restrictions on legislators than on judges about which texts to treat as authoritative; and non-legislative (p.64) law-making has become a normal phenomenon of modern law, especially on the supranational level. Here, non-legislative codifications, like the PECL, very much look like an official piece of legislation. Indeed, they consist of rules that are not formulated to convince other participants to the legal discourse, but to be applied by their addressees. 82

On the other hand, many codifications have become ‘prison cells’ of private law in the course of the 19th and 20th centuries. 83 In some European countries, influential lawyers and courts increasingly regard the traditional rules of their national codification as unsatisfactory, and yet this legislation is the basis of their private law. In such a situation, the legal professions may look for other sources of the law to overcome the traditional limitations of their codifications. It is not surprising that they listen to an ‘echo of universalism’ 84 having recourse to European principles as soft law, if those principles look attractive and if they have been assigned sufficient authority in European legal discourse; this explains the recent developments in Spain. 85 However, such developments should not be over-emphasized. In the present day, cases where the PECL have in fact been the legal basis for a judicial change of the law are still exceptional. Clearly, there are great differences between the various legal systems. The practice of Spanish courts, for example, would today be unthinkable in Germany or France.

3. Some results

All in all, the present authority of the PECL in Europe cannot be compared with the authority of the American Restatements in the United States. Normally, the European Principles are not used by the courts as an ultimate textual authority. Nonetheless, these developments make apparent that the authority of a non-legislative codification of European private law may well increase in the (p.65) future. 86 Clearly, the Study Group ECC and the Acquis Group intend the DCFR to become such a textual authority for European private law. 87 They have actively supported a process of recognition by already making a first outline of the DCFR publicly accessible 88 and by promoting it at conferences. 89 Both groups can count on the fact that there is no legal competence for the European Union to legislate comprehensively in matters of private law. 90 At the same time, their ‘academic’ DCFR will, most probably, remain, for the time being, the only non-legislative codification of the European law of obligations. 91

This is not to say, however, that the DCFR will in fact become a textual authority in itself. That status can only be achieved by sufficient recognition in the eyes of the European legal professions. Of course, it is far too early for a conclusive judgment about the impact of the DCFR on European private law. 92 History cannot be pre-empted. Yet it is probably fair to say that non-legislative codifications of European private law will face greater obstacles in this respect than the American Restatements: not least because the DCFR presently receives a rather cool greeting from the legal (p.66) professions of Europe, which are disappointed by its many substantial deficiencies. 93 Perhaps more importantly, the present parochial state of national European laws still appears to be more an intellectual than a practical problem. 94 There is no general feeling of a crisis of the law's administration in Europe. Most European legal systems are based on long-established codifications that have become the basic reference texts of the different national legal discourses; accordingly the DCFR can only become one concurring or conflicting basic text besides others. Relying on a European text of authority will therefore most likely remain exceptional. At present, the PECL have Europeanized contract law only at the level of scholarly discourse; in most Member States they have not reached actual legal practice. In fact, unlike the American Restatements, it will be difficult to regard the PECL or the DCFR as a ‘secondary source of the law’: 95 why should one look into one of those texts for information of the content of one's own well-administered and fully commented on codified law? Hence, the DCFR cannot accomplish what has been argued to be the main purpose of a codification: a reduction of the law's complexity. 96 Rather, it will increase the law's complexity by adding to the legal system a further basic reference text, one which may be in conflict with national codifications on the one hand and with the European Union's legislation on the other.

III. The UNIDROIT Principles of International Commercial Contracts

A picture of present non-legislative codifications would not be complete without a reference to UNIDROIT's Principles of International (p.67) Commercial Contracts (PICC), which were first published in 1994 and then in a revised and enlarged version again in 2004. 97 The purpose of these principles corresponds with the agenda of the American Law Institute, the Lando Commission, and its European successors in that the PICC are meant to become a textual basis for a new ius commune. 98 Yet, whereas the American Restatements on the one hand and the PECL or the DCFR on the other formulate restatements of the law in a specific part of the world, the PICC claim to be a universal, or uniform, reference text for a specific sector of society, namely for international trade. 99

UNIDROIT 100 was originally a foundation of the League of Nations. It was established in 1926, as an independent, intergovernmental organization; and it was later re-established on the basis of a multilateral agreement (the UNIDROIT Statute), 101 to which at present 63 states from all over the world and with different economic, political, and cultural backgrounds have acceded. 102 All these states are represented in the Institute's General Assembly. This organ, despite being the Institute's final decision maker, 103 is quite distant from the actual daily work. 104 Thus, the most important body is the Governing Council, 105 which consists, apart from the President and one ex officio representative of the International Court of Justice, of 25 elected members: 106 judges and academics, but also (p.68) civil servants and other practitioners. 107 It is this rather independent body which finally approves of final drafts for uniform law instruments. 108 However, such instruments will of course not become good uniform law if they are not subsequently endorsed by the Member States.

1. A UNIDROIT Restatement of global law?

However, such participation of the Member States did not take place in the case of the PICC. Whereas the usual legal instruments of UNIDROIT are international conventions or model laws (lois-type), 109 these forms were considered inappropriate for a unification of the law of commercial contracts. Preference was given to a non-legislative reference text, which should be modelled after the American Restatements. 110 The main motive was that the PICC would not have to be adopted by individual states, if they were drafted as a non-binding instrument. 111 Hence, the rules could be formulated without a view to future political negotiations and compromise with the representatives of national governments. What is more, the instrument could be easily revised at a later stage.

The PICC were designed as a restatement of international commercial contracts on the basis of the contract laws of the world's major jurisdictions and existing international instruments in the area of contract law, such as the CISG. 112 The project of drafting such an instrument had already been envisaged in 1968 by Mario Matteucci, who at this time served as the Institute's Secretary-General and later became its President. 113 However, the development remained slow (p.69) until a special Working Group was established for this project in 1980. 114 This Group was mainly composed of comparative law scholars, who represented the world's different legal systems. 115 It worked largely independently of the Institute and its organs: the Working Group did not adhere to formal consultation mechanisms with stakeholders and it never allowed for participation of representatives of the Member States’ governments. 116 Only a few disputes from within the Group were ever submitted to the Governing Council.

It is a result of this rather autonomous formulation of the PICC, that the Council felt itself unable to formally adopt them as its own instrument. Rather, the Council decided, in May 1994, in the light of controversy among its members, 117 that it ‘would not formally approve the Principles but rather authorise their publication’; at the same time the Council recommended its ‘widest possible distribution’ in practice. 118 Thus, formally, the PICC cannot be seen as an instrument of UNIDROIT. They lack a political sic volo sic iubeo from the Institute's side 119 and they are therefore not fully backed by the Institute's political authority. Nevertheless, the Principles have the Governing Council's nihil obstat and the Institute's institutional support. Thus, they are even officially published under the Institute's name, as if they had been formally approved.

The lack of formal approval corresponds to the claim of the PICC to be of persuasive authority, rather than formally binding. 120 Prima vista, such a claim makes perfect sense, and it corresponds to the American Law Institute's claim of authority for its Restatements. 121 Yet, whereas the American Restatements could at least (p.70) make a plausible claim of being a genuine, i.e. by and large descriptive, restatement of common principles of American common law, 122 such a claim seems more difficult to maintain for the PECL, and it seems even less convincing for the PICC. Indeed, whereas the PECL formulate rules for a European society, which is—despite the different languages and national identities—culturally, politically, and economically more or less homogenous, the PICC were originally meant to bridge capitalist and socialist legal systems; today they must be acceptable for Western, Asian, and Islamic business, and for both developed and developing countries. Thus, as there are probably not sufficient commonalities for a genuine restatement, 123 an important aspect of the PICC must be seen to be proposing new law for international commerce. Many of its rules are innovative, and they claim to be addressing the needs of international trade more appropriately than the different national legal systems. 124

In this context, innovation does not relate only to more technical matters, such as problems originating from the use of different languages or from the fact that contract partners are situated in different time zones. Substantial innovation can also be found in foundational principles of the law, such as the favor contractus, which informs many of the PICC's rules by giving preference to a re-interpretation, rather than an avoidance of the contract. 125 There can be no serious doubt that the Working Group often followed a ‘best-solution approach’. 126 Yet, for such a proposal, one would normally expect reasons to be given. However, no such reasoning can be found in the PICC. Its official Comments are explanations of the rules, not justifications of a particular solution or policy. What is (p.71) more, they do not reveal to what degree the provisions in question are actually understood as descriptive or prescriptive. 127 As in the case of the American Restatements (first), the strategy was apparently to blur the difference between norms and fact, between stating new and describing existing law. 128

2. Making a global contract law

If the objective of the PICC had been to become the standard authority for international commercial contracts, especially in arbitration, its success is difficult to evaluate objectively. This is largely due to the fact that different groups of actors involved in the legal administration of international commercial law apparently developed different attitudes to this instrument. Thus, whereas the Governing Council of UNIDROIT recently claimed that the ‘success in practice of the UNIDROIT Principles … surpassed the most optimistic expectations’, 129 a more distanced and neutral commentator emphasized that ‘business people and practitioners have … been slow to embrace the PICC’. 130 Indeed, the majority of national lawyers are probably still not familiar with the Principles; and most national systems of international private law do not allow for a choice of the PICC, because these Principles do not meet the requirement of nation states’ ‘law’. 131 As a consequence, there is still little case law which was decided on the basis of the PICC. 132 (p.72) Indeed, choosing the PICC or only a non-national legal standard continues to be exceptional. 133 This may be a sobering finding, at least if one assumes that choice of law is normally well-considered and that the PICC are addressed, first of all, to the international business community. 134

Despite this reluctance on the practitioners’ side, however, the PICC have today become a well acknowledged instrument of international arbitration. From an international arbitrator's perspective, ‘the PICC are the most comprehensive and regularly updated statement of internationally recognized legal rules applicable to international commercial contracts’. 135 They may therefore be regarded as an appropriate legal instrument for deciding disputes of international commerce. Indeed, there is evidence that arbitrators are increasingly inclined to apply the Principles if the parties’ choice of law allows them to do so. 136 Of course, the parties’ intentions will always be given priority. Nonetheless, there is abundant case law on arbitration tribunals and national courts taking the PICC as an evidence of transnational law in those cases where the parties had chosen the lex mercatoria or ‘general principles’. 137 Of course, in such a case a tribunal must assess whether the specific provision of the PICC indeed reflects a ‘common core of current global contract law’. 138 Yet, this is a somewhat fictitious notion as there is neither a well-defined body of global commercial (p.73) law nor a sufficiently broad common core of national laws on international contracts. 139 At the same time, it is normally anything but evident what the parties exactly wished to refer to when they referred to the lex mercatoria or ‘general principles’. Thus, it is not surprising to see arbitrators in such cases falling back on the PICC.

Furthermore, arbitration tribunals have often applied the PICC as a neutral law or default law in case of an absence of a choice of law, 140 especially where arbitration involves a state; 141 and the PICC are also used as an instrument to supplement an incomplete lex contractus. 142 What is more, as the PICC have been formulated independently of national governmental influence, they are apparently seen as a neutral standard of transnational justice and as an expression of a global legal consensus. 143 Indeed, arbitrators even relied on the PICC when they had been asked to decide ex aequo et bono or as amiables compositeurs. 144 Perhaps even more importantly, the PICC have been used by arbitrators as a ‘conceptual matrix’ for analysing and applying domestic and uniform law, 145 they may be applied as ‘a set of backup provisions’, 146 and they are taken as a standard for validating, or controlling, decisions that have been reached under domestic law. 147 Even if the rules actually applied in such cases are still those of domestic law, and if the recourse to the PICC may in a formal sense be regarded as an obiter dictum, 148 they have thus become an expression of what is regarded as a transnational standard of contractual justice. It follows, according to (p.74) some observers, that the PICC are even changing the value basis of international commercial contract law. 149

All this reveals again a remarkable similarity with the use of Justinian's Corpus iuris during the ius commune. 150 Clearly, jurists must give priority to particular legislation, be it because the parties have chosen to do so, or because there is specific statutory law backed by the political authority of a town or guild or by a modern parliamentarian legislator. 151 But the non-legislative reference text is nonetheless treated as an authoritative legal standard. It is therefore applied subsidiarily and it informs the interpretation of a particular law. Indeed, the parallel with the status of the Corpus iuris is confirmed by the fact that the PICC have proved extremely influential on legislative reforms of contract laws in many parts of the world. 152 Although the PICC are no model law, such a use was clearly intended by its authors when the PICC went ‘beyond the boundaries of party autonomy’ in their new edition of 2004. 153 This function was originally considered supplemental only; yet, today, it may have become a main aspect of the PICC in the actual global reality. 154 In 2007, the use of the Principles was also recommended by UNCITRAL; 155 and the PICC are increasingly regarded in scholarly discourse as a major textual authority of global commercial contract law. 156 Today, they are seen as ‘General Principles of Law’: as an instrument for the interpretation and supplementation of uniform and national law. 157

(p.75) It is therefore not surprising that the PICC have become the object of a genuine doctrinal Commentary on the UNIDROIT Principles of International Commercial Contracts, edited in 2009 by Stefan Vogenauer and Jan Kleinheisterkamp. Since the days of the commentaries to the Digest, this is probably the first major non-official commentary on a non-legislative reference text; 158 and in the same way as those earlier commentaries treated the Roman texts as the actual law, this modern commentary treats its reference text as if it were binding legislation. 159 The authors of this commentary, mostly international legal scholars, but also some arbitrators, are impartial representatives of the legal profession in that none of them was involved in drafting the PICC or otherwise has a particular personal interest in promoting their use. Yet, in effect, this is precisely, what they do by elevating the PICC to the status of an authoritative textual basis of global contract law and by furthering the application of the Principles in legal practice. Thus, the claim that the contributors to this commentary ‘did not subscribe to a uniform agenda’ 160 may easily be misunderstood. The commentary is not just a piece of disinterested academic work. Its authors do more than objectively describe the PICC's doctrinal structure and compare it with other legal systems. Rather, they significantly contribute to the making of a global commercial contract law by complementing the PICC's text with a body of exegetic and comparative doctrinal learning 161 and also with practical recommendations as to how the PICC should be used in legal practice. 162 Hence, (p.76) its authors must be seen as agents of a new global commercial ius commune.

Thus, not unlike the standard glosses to the medieval reference texts, the commentary transforms the rather abstract textual authority of the PICC into an applicable system of rules. As a result, it is not an overstatement saying that there is today again a transnational system of commercial contract law. 163 Its textual basis was formulated by UNIDROIT, yet the law is actually made by the legal profession. The legal profession recognizes the text as a standard for national legislation and it fleshes it out doctrinally into a comprehensive body of law. In short: the legal profession makes the PICC the textual basis of a transnational commercial contract law.

IV. Some Results

It would be a mistake simply to equate the American Restatements, the PECL, and the PICC in their being both transjurisdictional and non-legislative restatements of private law. After all, there are important differences, not only as to the social and legal background of these texts, but also with regard to their function and effect on legal practice. Thus, the impact and authority of the American Restatements can only be understood in the historical context of American common law at the beginning of the 20th century. They were generally accepted as an appropriate answer from the legal profession to what was perceived as a profound crisis in the common law. The PICC are singular in filling in a textual vacuum of global law, such a textual vacuum having become rare in modern law. And the PECL are more an expression of legal idealism than an answer to practical legal needs.

Thus, it is perhaps not surprising that only the American Restatements actually succeed in making legal authority. The authority of the PECL and of the PICC was not immediately brought into effect by their authors, but developed ex post, and—in the case of the PICC—in a way which significantly differed from (p.77) their authors’ original intentions. 164 Hence, the authority of these texts can clearly not be equated. Whereas the American Restatements were not only recognized as legally authoritative by academic lawyers, but also by the judiciary and at the bar, the PECL's authority is limited to the scholarly legal discourse. The PICC's authority is again of different kind. As far as it reaches, namely in the field of global commercial contract law, it is significantly stronger than the authority of the PECL. Here, the PICC are not only recognized as authoritative among scholars; they are also applied in practice by arbitrators. Still, their authority has reached neither the different national legal professions nor the global business community: actors, who still prefer national solutions for choice-of-law agreements. (p.78)

Notes:

(1) Above at 6.

(2) Zimmermann, ‘Comparative Law and the Europeanization of Private Law’, 560 ff., 562.

(3) On this group, see below n. 59.

(4) On this group, see below n. 60.

(5) On the intellectual and historical background of the founding of the American Law Institute, see LaPiana, ‘Founding of the American Law Institute’. More specifically, on the Institute's history, see Hull, ‘Restatement and Reform’, with detailed references.

(6) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 1.

(7) Pound, ‘Dissatisfaction with the Administration of Justice’, especially 402 ff. See also, slightly later, Cardozo, Growth of the Law, 3 ff.

(8) See especially the speeches of Joseph Beale of Harvard and Wesley N. Hohfeld of Yale that were presented at the 1914 meeting of the Association of American Law Schools: Beale, ‘Necessity for a Study of Legal System’; Hohfeld, ‘A Vital School of Jurisprudence and Law’. Although Beale had initially opposed the idea of an American Law Institute and although he had earlier criticized the format of the later Restatements (‘Dicey's “Conflict of Laws.”’, 168), he soon actively participated in the Institute and became the reporter of the Conflicts-Restatement (First); see Symeonides, ‘First Conflicts Restatement’, 41 ff., 47.

(9) ABA, ‘Report of the Special Committee Appointed to Consider and Report Whether the Present Delay and Uncertainty in Judicial Administration Can be Lessened, and If So, By What Means’, 329 ff.

(10) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 6 ff., 66 ff., 69 ff., 77 f.

(11) Cardozo, Growth of the Law, 3: ‘Our law stands indicted for uncertainty, and the names of weighty witnesses are endorsed upon the bill’.

(12) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 12 ff.

(13) Above, at 16.

(14) Cf. Beale, Conflict of Laws I, 43; Cardozo, Growth of the Law, 9. For the contemporary discussion Friedman, History, 304; Crystal, ‘Restatement Movement’, 267 ff., 273; LaPiana, ‘Founding of the American Law Institute’, 1090 ff.; von Mehren, ‘Codification and Case Law’, 668 f.; Jansen and Michaels, ‘Private Law and the State’, 387 f., with further references.

(15) On this point, see Gilmore, Ages of American Law, 70, 72.

(16) Southern Pacific Co. v Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting). The most prominent authority for this position is the later decision of Erie Railroad R. R. v Tompkins, 304 U.S. 64 (1938), which was, however, decided after the foundation of the American Law Institute in 1923.

(17) Beale, ‘Necessity for a Study of Legal System’, 37; cf. also Symeonides, ‘First Conflicts Restatement’, 56 ff.

(18) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 8 f., 85 ff. A different picture is drawn, in this respect, by Hesselink, ‘Choices Made by the Lando Commission’, 77 f., who neglects, however, these central historical sources.

(19) For an overview, see Michaels, ‘Restatements’.

(20) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 14.

(21) Cf. also ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 28. Continental observers, accordingly, emphasize this difference between codifications and the Restatements; see Zekoll, ‘Law Institute’, 112 ff. Nevertheless, it is disputed, within the American context, whether the Restatements were in effect more a bulwark against codification, or too similar in approach and structure to civil-law codes; cf. Adams, ‘Blaming the Mirror’, 226 ff.; Crystal, ‘Restatement Movement’, passim, both with further references.

(22) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 19 ff., 23 ff.

(23) Cardozo, Growth of the Law, 9 and ff., 16 f.

(24) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 25; see also loc. cit., 29.

(25) On the early debates within the American Law Institute, see Cardozo, Growth of the Law, 10, 16; cf. also Frank, ‘Law Institute’, 617.

(26) ALI, Restatement in the Courts, 1934.

(27) There is no comprehensive analysis; for examples, see Eisenberg, ‘Concept of National Law’, 1251 ff. A somewhat more complete review of the largely uncritically receptive reaction of the courts to a new Restatement can be found in Maggs, ‘Ipse Dixit’, 512 f., 517 ff.

(28) von Mehren, Law in the United States, 21 f.; Frank, ‘Law Institute’, 638 ff.; Zekoll, ‘Law Institute’, 115 ff.

(29) Rheinstein, ‘Leader Groups’, 692 f.

(30) Cf. Beale, Conflict of Laws I, 43.

(31) Snyder, ‘Private Lawmaking’, 381 (and f.) with further references.

(32) Maggs, ‘Ipse Dixit’, 527 ff., 530 f.

(33) Cf. Wolfram, ‘Bismarck's Sausages’, 820 ff.; Barker, ‘Lobbying and the American Law Institute’; Frank, ‘Law Institute’, 628 ff.; see also the Student Note, ‘Just What You'd Expect’, 2367.

(34) Beale, Conflict of Laws I, 43.

(35) Wechsler, ‘Restatements and Legal Change’, 188 ff.; Zekoll, ‘Law Institute’, 113 ff.

(36) Schwartz, Kelly and Partlett, Prosser, Wade and Schwartz's Torts, 736 f., with further references on the debate.

(37) Vandall and Vandall, ‘Accurate Restatement’; Kysar, ‘Expectation of Consumers’.

(38) Cf. Rheinstein, ‘Leader Groups’, 692 f.; Frank, ‘Law Institute’, 639: ‘the visions of the founders have been realized’. It should be taken into account, though, that John P. Frank used to be a leading member of the American Law Institute.

(39) Cf. e.g. ALI, Contracts. Colorado Annotations (1936).

(40) See especially Beale, Conflict of Laws; cf. also Williston and Thompson, Contracts (3rd ed.). Although Williston largely retained the original systematic order of his textbook (on which the restatement was based, however), he regularly based the exposition of a problem or definition on the relevant provision in the Restatement or at least referred, in the first footnote of each paragraph, to such a relevant provision.

(41) The comparison is anything but new; cf., though sceptically, Holmes, Letter to Harold Laski, 15 February 1923: ‘You can't evoke genius by announcing a corpus iuris’: Holmes-Laski Letters I, 481 f. Indeed, the idea of an American corpus iuris had been present in the public discourse since 1910; cf. LaPiana, ‘Founding of the American Law Institute’, 1107, with further references.

(42) Eisenberg, ‘Concept of National Law’, 1232 ff. and passim. Although Eisenberg does not see the Restatements as the only source of American national common law, he throughout assigns a special status to them.

(43) Cf. Bernstein, ‘Restatement Redux’, 1667 ff. Looking at product liability, in particular, Bernstein doubts, on the one hand, whether Restatements are still necessary, as there are alternative new technological possibilities of achieving legal certainty. On the other hand, Bernstein questions whether the desired unity of the law is still a realistic aim as American law has indeed become strongly politicized.

(44) Zekoll, ‘Law Institute’, 112 ff.; Frank, ‘Law Institute’, 617 f.; cf. also Metzger, Extra legem, intra ius, 140 ff.

(45) See Cohen, ‘Transcendental Nonsense’, 833 f.: ‘The “Restatement of the Law” … is the last long-drawn-out gasp of a dying tradition’; Gilmore, Ages of American Law, 73 f.; Friedman, History, 304 f.

(46) Recent debate has focused on the standard of products liability; for an overview of the discussions during the drafting-process, see Vandall, ‘Constructing a Roof Before the Foundation is Prepared’, 261: ‘wish list from manufacturing America’. A good overview and further references can be found in the anonymous Student Note, ‘Just What You'd Expect’, 2374 ff., 2376, 2378 f. For the more recent debate after the Restatement's publication, see Vandall and Vandall, ‘Accurate Restatement’; Kysar, ‘Expectation of Consumers’.

(47) See Hull, ‘Restatement and Reform’, who shows, convincingly, that a ‘reformist plan’ was from early on part of the Institute's agenda.

(48) Cardozo, Growth of the Law, 2, citing the initial sentence of Pound, Legal History, 1.

(49) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 14 ff.: the Restatements ‘should be at once analytical, critical and constructive’.

(50) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 15.

(51) Stapleton, ‘Controlling the Future by Restatement’, 264 f. and passim.

(52) ALI, ‘Certificate of Incorporation’, at <http://www.ali.org/doc/charter.pdf>: ‘The particular business and objects of the society are educational, and are to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work’ (emphasis added).

(53) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 15 f.: ‘Changes which do not fall under the ban of this limitation, and which will carry out more efficiently ends generally accepted as desirable are within the province of the restatement to suggest’.

(54) Cf. Adams, ‘Blaming the Mirror’, 242 ff.; Frank, ‘Law Institute’, 624 f.; Zekoll, ‘Law Institute’, 112 ff. For a detailed analysis and evaluation of the different Restatements of the first series see DeMott, ‘First Restatement of Agency’, especially 31 ff.; Movsesian, ‘Williston’; Kelley, ‘Reform by Descriptive Theory’; Kull, ‘Restitution and Reform’; Symeonides, ‘First Conflicts Restatement’. The general impression given by these studies is that the first Restatements were mildly reformatory (Kelley, loc. cit., 106 f.). They stabilized the respective subjects doctrinally on the basis of a traditional, more or less pragmatic concept of law, which was clearly never purely formalistic. Moreover, all of these Restatements included some more innovative ‘progressive’ rules that implied a change or reform of the prevailing law.

(55) Cf. also Michaels, ‘Restatements’.

(56) Wechsler, ‘Restatements and Legal Change’, 190. For an analysis of the Restatement of Torts (First) on such a basis, see Kelley, ‘Reform by Descriptive Theory’, especially 122 ff.

(57) See above at 14 f.

(58) European Group on Tort Law, Principles of European Tort Law; on these Principles, Zimmermann, ‘Comparison and Points of Contact’; Jansen, ‘Principles of European Tort Law’; id., ‘State of Art of European Tort Law’; Wagner, ‘Harmonizing European Tort Law’; Schmidt-Kessel, Reform des Schadenersatzrechts I.

(59) On that Group, see von Bar, ‘Die Study Group on a European Civil Code’; Wurmnest, ‘Privatrechtsvereinheitlichung in Europa’, 732 ff.

(60) <http://www.acquis-group.org>. The Group was founded in 2002 on the basis that the European acquis communautaire had not been taken into account by the Lando Commission and by the Study Group ECC.

(61) Published thus far: Study Group ECC/von Bar, Benevolent Intervention; Study Group ECC/Hesselink et al., Commercial Agency; Study Group ECC/Barendrecht et al., Service Contracts; Study Group ECC/Drobnig, Personal Security; Study Group ECC/Lilleholt et al., Lease of Goods; Study Group ECC/Hondius et al., Sales.

(62) The comparative basis of these principles, however, is often very weak; for the Study Group's Principles on Benevolent Intervention, see Jansen, ‘Negotiorum Gestio und Benevolent Intervention in Another's Affairs’. Similarly, the principles on service contracts find no basis in any national legal system.

(63) The Research Group on the Existing EC Private Law (ed.), Acquis Principles. Contract I. For more detail, see Jansen and Zimmermann, ‘Restating the Acquis communautaire?’; cf. also below at 90 ff., 92 f.

(64) An exception, though, are the Principles on Sales, which are largely based on the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees.

(65) von Bar, Clive and Schulte-Nölke (eds), DCFR Outline Edition. For an evaluation of the DCFR's Interim Outline Edition of 2008 (which has not been changed in great substance), see Eidenmüller, Faust, Grigoleit, Jansen, Wagner and Zimmermann, ‘Policy Choices and Codification Problems’.

(66) Zimmermann, ‘Comparative Law and the Europeanization of Private Law’, 563; Smits, ‘PECL and the Harmonisation of Private Law in Europe’, 572 f., 576 f., 580 ff. It should be taken into account, though, that Reinhard Zimmermann was an active Member of the third Working Team of the Lando Commission.

(67) See especially, for the United States, Reimann, ‘The CISG in the United States’; for a recent overview with regard to the actual practice, see Ferrari et al. (eds), Draft UNCITRAL Digest.

(68) Art. 3 Rome Convention (EC Convention on the Law Applicable to Contractual Obligations (1998) OJ C 27/24); now Art. 3 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), (2008) OJ L 177/6; on the discussion of the question with regard to the PICC, see PICC-Commentary/Michaels, Preamble I [51] ff. Thus, the Principles can only be incorporated into a contract as if they were standard terms.

(69) Lando, ‘Preface’, xii f.

(70) Lando, ‘Preface’, xi. The project had already been proposed by Ole Lando in 1976.

(71) See, e.g., Canaris, ‘UNIDROIT Principles und PECL im System der Rechtsquellen’, 13 ff., 29 ff.: ‘Rechtsgewinnungsquelle’; Canaris uses the UNIDROIT Principles and the PECL as a basis for introducing a contractual remedy for disgorging profits, although there is no legislative basis for such a remedy in the German BGB. He does not, however, treat the Principles as an ultimate legal authority, which could be used without further justification in legal argument.

(72) Zimmermann, PECL als Ausdruck und Gegenstand Europäischer Rechtswissenschaft, 2003, 49 ff., with further references.

(73) See Vendrell Cervantes, ‘Application of the PECL’, analysing 12 decisions of the Tribunal Supremo and nine decisions of other courts, all of them but one between 2005 and 2007.

(74) See Busch, ‘PECL before the Supreme Court of the Netherlands’.

(75) See Trstenjak, ‘Der Gemeinsame Referenzrahmen und der Europäische Gerichtshof’.

(76) Zimmermann, PECL als Ausdruck und Gegenstand Europäischer Rechtswissenschaft; cf. also id., ‘Ius Commune and the PECL’, 33 ff.; id., ‘PECL: Contemporary Manifestation of the Old, and Possible Foundations for a New, European Scholarship of Private Law’.

(77) Busch and Schelhaas (eds), PECL and Dutch Law; Antoniolli and Veneziano (eds), PECL and Italian Law; see also MacQueen and Zimmermann (eds), European Contract Law.

(78) This point is elaborated in more detail in Jansen, Binnenmarkt, 19.

(79) Zimmermann, ‘Comparative Law and the Europeanization of Private Law’, 563; Smits, ‘PECL and the Harmonisation of Private Law’, 572 f., 576 f., 580 ff.

(80) This was even more remarkable as the PECL had been published only two years before and as the rules on prescription that were taken as a legislative model had not even been officially published; see BT-Drucksache 14/6040 (14 May 2001), 80, 86, 89, 92 f., 131, 133 ff., 177, 179, 181 f., 186, 188, 196, 209, 212, 217 f., 220, 223, 238, 240, 244, 268 (CISG), 92, 103, 129, 131, 164 f., 214 (PECL); BT-Drucksache 14/7052 (9 October 2001), 174 f. (CISG), 178 (PECL). Nevertheless, influential authors had already introduced these Principles into the critical discussion of the first draft of the reform as supra-national textual authorities; see U. Huber, ‘Das geplante Recht der Leistungsstörungen’.

(81) See Wendehorst, ‘Private Law Reasoning’, 148 ff.

(82) Art. 1:101 (1) PECL; see Michaels, ‘Privatautonomie und Privatkodifikation’, 591; similarly for the DCFR von Bar, Clive and Schulte-Nölke (eds), DCFR Outline Edition, Introduction [6] ff.

(83) The metaphor is old: Wüstendörfer, ‘Die deutsche Rechtswissenschaft am Wendepunkt’, 224.

(84) Smits, ‘PECL and the Harmonisation of Private Law’, 580.

(85) Vendrell Cervantes, ‘Application of the PECL’, 534 ff., with further references.

(86) Concurring Hesselink, ‘CFR as a Source of European Private Law’, 923 ff.

(87) Schulte-Nölke, ‘Contract Law or Law of Obligations?’, 50; cf. also Pfeiffer, ‘Von den PECL zum DCFR’, 705 f.

(88) Cf. above n. 65.

(89) It is probably no coincidence that the two main conferences on the first outline of the DCFR were held in Osnabrück (17 to 19 April 2008) and Münster (3 and 4 July 2008), where the Study Group ECC and Acquis Group or leading members of the groups are based. Other large conferences, open to the general public, were held at Trier (6 and 7 March 2008) and Barcelona (6 and 7 June 2008).

(90) For more detail see Hähnchen, ‘Rechtsform des CFR’, with a discussion of different possible bases of competence and different legal forms (such as directive, regulation etc.) for the CFR. On the one hand, there is no legal basis for a binding European instrument comprehensively codifying or restating European private law, yet, on the other hand, it does not seem to be politically wise for European politicians to discuss further competences for the European Union.

(91) But see the Principles of European Tort Law, which have been prepared by the European Group on Tort Law: above n. 58 with further references.

(92) Cf. the discussion in Schmidt-Kessel (ed.), Der gemeinsame Referenzrahmen: Röthel, ‘Der Referenzrahmen als Modellgesetz?’; Riesenhuber, ‘Systembildung durch den CFR’; Leible, ‘Auswirkungen des CFR auf eine gemeinschaftsrechtskonforme Auslegung’; Trstenjak, ‘Der Gemeinsame Referenzrahmen und der Europäische Gerichtshof’. Most of these contributions, however, do not clearly distinguish the non-legislative DCFR from the political CFR, since the authors were expecting the DCFR to develop soon into a political CFR.

(93) See, for Germany, Eidenmüller, Faust, Grigoleit, Jansen, Wagner and Zimmermann, ‘Policy Choices and Codification Problems’; cf. also Palandt/Heinrichs, Einleitung 1 [33], and the contributions by Faust, Eidenmüller, Wagner, and Wendehorst in Schulze et al. (eds), Der akademische Entwurf für einen Gemeinsamen Referenzrahmen; for the United Kingdom, see Whittaker, ‘“Draft Common Frame of Reference”. An Assessment’; id. ‘A Framework of Principle for European Contract Law?’.

(94) Jansen, Binnenmarkt, 7 ff. and passim; cf. also Michaels, ‘Restatements’, at 4.

(95) Michaels, ‘Restatements’, at 4; cf. also with regard to the PICC, PICC-Commentary/Michaels, Preamble I [3] f., with further references on the current debate.

(96) Kroppenberg, ‘Der gescheiterte Codex’, 117.

(97) For an overview, see Zimmermann, ‘Unidroit-Grundregeln’.

(98) See, expressly, Bonell, International Restatement, 1 ff., 3; cf. also loc. cit., 9 ff.

(99) PICC Preamble (Purpose of the Principles): ‘(1) These Principles set forth general rules for international commercial contracts; see Bonell, International Restatement, 68 ff.; PICC-Commentary/Michaels, Preamble I [21] ff.; [25] ff.

(100) See Art. 1 (1) of the Statute of UNIDROIT (available at <http://www.unidroit.org/mm/statute-e.pdf>): ‘The purposes of the International Institute for the Unification of Private Law are to examine ways of harmonising and coordinating the private law of States and of groups of States, and to prepare gradually for the adoption by the various States of uniform rules of private law’.

(101) See n. 100.

(102) For the history of the PICC and of UNIDROIT, see PICC-Commentary/ Vogenauer, Introduction [14] ff.

(103) See Arts. 16 ff. UNIDROIT Statute (n. 100). Many of the General Assembly's decisions need to be approved by the Member States, however.

(104) Indeed, the General Assembly does not do much more than ‘approv[ing] the Work Programme every three years’: Art. 5 (3) UNIDROIT Statute (n. 100).

(105) See Arts. 11–14, 15 (2) UNIDROIT Statute (n. 100).

(106) Art. 6 UNIDROIT Statute (n. 100).

(107) PICC-Commentary/Vogenauer, Introduction [14].

(108) Arts. 1(2)(a), 14(3) UNIDROIT Statute (n. 100). According to Art. 14(5), it is also the Governing Council's task to consider the appropriate diplomatic steps to convince the Member States to adopt such instruments.

(109) See PICC-Commentary/Vogenauer, Introduction [7] ff., discussing different ‘tools of harmonization’ and their respective advantages and disadvantages.

(110) For discussion, see Bonell, International Restatement, 1 ff., 14 ff.; PICC-Commentary/Vogenauer, Introduction [12] f.; see also Basedow, ‘Die UNIDROIT-Prinzipien’, 1 ff.; id., ‘Uniform Law Conventions and the UNIDROIT Principles’, 129 f.

(111) Governing Council of UNIDROIT, ‘Introduction to the 1994 Edition’, xiv f.

(112) For more details about the PICC's sources PICC-Commentary/Vogenauer, Introduction [21] f.

(113) Bonell, International Restatement, 27, with references.

(114) See for all Bonell, International Restatement, 27 ff.; PICC-Commentary/Vogenauer, Introduction [16] ff., both with further references.

(115) For the individual participants of the Group, see Bonell, International Restatement, 29 f., 36 f.; for the second Working Group established in 1997, see loc. cit., 40, 43. See also loc. cit., 33 ff. for a long list of other jurists, who collaborated with the first Working Group, and 41, 43 f. for observers and advisors contributing to the work of the second Group.

(116) PICC-Commentary/Vogenauer, Introduction [20].

(117) See (1994) UNIDROIT Proceedings and Papers, CD (73) 18, pp. 11 ff.

(118) (1994) UNIDROIT Proceedings and Papers, CD (73) 18, p. 22.

(119) Cf. above at 35 and below at 85 ff.

(120) Governing Council of UNIDROIT, ‘Introduction to the 1994 Edition’, xv; see also Bonell, International Restatement, 25.

(121) Above at 54.

(122) Above at 56 ff.

(123) See e.g. Furmston, ‘UNIDROIT Principles and International Commercial Arbitration’, 205; Basedow, ‘Die UNIDROIT-Prinzipien’, 3, 15 ff.

(124) See Bonell, International Restatement, 11 f., 24, 48 ff., describing the PICC as ‘a mixture of both tradition and innovation’ (24).

(125) Bonell, International Restatement, 50 ff., 102 ff. Examples are Arts. 6.2.3, 7.1.4, and 7.3.1 PICC, which favour keeping a contract alive despite hardship or breach of contractual obligations. These provisions cannot be regarded as an expression of contract law values that are globally recognized; see the Notes to Art. 6:111 PECL; PICC-Commentary/Schelhaas, Art. 7.1.4 [2].

(126) Bonell, International Restatement, 31 ff., 45 ff. and passim.

(127) See PICC-Commentary/Michaels, Preamble I [3] f.

(128) See Basedow, ‘Die UNIDROIT-Prinzipien’, 132: ‘Die traditionelle Grenze zwischen Recht und Tatsachen muß verwischt und die positivistische Vorstellung, daß … normative Texte nur dann Bindungswirkung entfalten können, wenn sie in der verfassungsrechtlichen vorgesehenen Weise zustandegekommen sind, muß überwunden werden’.

(129) Governing Council of UNIDROIT, ‘Introduction to the 2004 Edition’, viii.

(130) PICC-Commentary/Vogenauer, Introduction [41].

(131) For a thorough comparative overview, see PICC-Commentary/Michaels, Preamble I [51] ff., also with references to contrary scholarly opinions, which have, however, only rarely convinced the respective courts.

(132) For an overview see Bonell, UNIDROIT Principles in Practice; the record is updated at <http://www.unilex.info/dynasite.cfm?dssid=2377&dsmid=13617>. Another reason is, of course, that most arbitration awards are not published for reasons of confidentiality. Bonell estimates that ‘the total number of awards referring in one way or another to the UNIDROIT Principles amounts to an average of 15 per year’: loc. cit., xii.

(133) This point is emphasized by PICC-Commentary/Vogenauer, Introduction [40] f.; see also Oser, A Governing Law?, 28 f.; Dasser, ‘Mouse or Monster?’, 139 ff. In fact, the actual number of courts’ decisions and reported arbitration awards applying the PICC may even be in decline; see the record at <http://www.unilex.info/dynasite.cfm?dssid=2377&dsmid=13618&x=1>, which reports only eight cases for 2008 (as of 12 November 2009).

(134) Cf. PICC Preamble (Purpose of the Principles):‘(1) These Principles set forth general rules for international commercial contracts. (2) They shall be applied when the parties have agreed that their contract be governed by them. (3) They may be applied … ’. See also the Comments 4 to the Preamble.

(135) PICC-Commentary/Scherer, Preamble II [27].

(136) Bortolotti, ‘The UNIDROIT Principles’, 142.

(137) PICC-Commentary/Scherer, Preamble II [18], with further references; cf. also [38]; Bortolotti, ‘The UNIDROIT Principles’, 150 f.; Oser, A Governing Law?, 30 f., 49 ff.; PICC-Commentary/Michaels, Preamble I [65] ff., with further references.

(138) PICC-Commentary/Scherer, Preamble II [18].

(139) Cf. Dasser, ‘Mouse or Monster?’, 132 ff.

(140) Marella, ‘Choice of Law in Third-Millennium Arbitrations’, 1156 ff.; PICC-Commentary/Scherer, Preamble II [27], both with ample further references.

(141) PICC-Commentary/Scherer, Preamble II [35].

(142) PICC-Commentary/Scherer, Preamble II [38].

(143) Cf. Brödermann, ‘The Growing Importance of the UNIDROIT Principles’, 756 ff.; Oser, A Governing Law?, 57 ff., 154; more reluctantly Bortolotti, ‘The UNIDROIT Principles’, 143 ff.

(144) PICC-Commentary/Scherer, Preamble II [64] ff. with references.

(145) Marella, ‘Choice of Law in Third-Millennium Arbitrations’, 1167 ff., 1173 with examples.

(146) PICC-Commentary/Scherer, Preamble II [60].

(147) PICC-Commentary/Scherer, Preamble II [55] f.; Marella, ‘Choice of Law in Third-Millennium Arbitrations’, 1169, with examples, where the PICC were used for giving ‘transnational status’ to decisions reached under domestic law.

(148) This point is emphasized by PICC-Commentary/Scherer, Preamble II [57]; PICC-Commentary/Vogenauer, Introduction [40]; cf. also PICC-Commentary/Vogenauer, Art. 1,7 [23] ff.

(149) Berger, ‘UNIDROIT Principles and the new lex mercatoria’.

(150) Concurring Michaels, ‘Umdenken für die UNIDROIT-Prinzipien’.

(151) Above at 33 f.

(152) PICC-Commentary/Michaels, Preamble I [118] ff. with a thorough overview; cf. also the contributions to Cashin Ritaine and Lein (eds), The UNIDROIT Principles 2004.

(153) Bonell, International Restatement, 78 ff. Examples are rules of three-person relationships, such as the assignment of rights, and rules on limitation periods, which are normally beyond the parties’ autonomy.

(154) PICC-Commentary/Michaels, Preamble I [118].

(155) ‘The United Nations Commission on International Trade Law,…(c)ommends the use of the Unidroit Principles 2004, as appropriate, for their intended purposes’; see PICC-Commentary/Michaels, Preamble I [99].

(156) Cf. Heidemann, Methodology of Uniform Contract Law, 143 ff. and passim: ‘source of law’.

(157) Basedow, ‘Uniform Law Conventions and the UNIDROIT Principles’, 133 ff., 135; Burkart, Interpretatives Zusammenwirken, 209–253. More reluctantly, though with regret, Ferrari, in: Schwenzer (ed.), Schlechtriem/Schwenzer, Art. 7 [59] ff. For national law see the references in n. 71 above; PICC-Commentary/Michaels, Preamble I [88] ff., [100] ff., [111] ff., with further references.

(158) The early textbooks on the American Restatements (above n. 40) were written by the authors of the respective Restatements; they therefore had more the character of ‘official’ explanations.

(159) PICC-Commentary/Vogenauer and Kleinheisterkamp, Preface, viii: ‘for the purposes of this commentary we treat the Principles as we would treat a binding contract law … ’.

(160) PICC-Commentary/Vogenauer and Kleinheisterkamp, Preface, viii.

(161) Thus, the commentators make interpretative use of the drafting history of the provisions (since about 2000, the materials have been generally accessible on the webpage of UNIDROIT <http://www.unidroit.org>, among the Institute's annually ordered Documents, under the heading ‘Study L’); and they explain, mostly on the basis of broad comparative learning, whether the provisions are in fact an expression of a global consensus or rather a specific national rule or even an innovative new solution.

(162) PICC-Commentary/Vogenauer and Kleinheisterkamp, Preface, viii.

(163) Cf. Metzger, Extra legem, intra ius, 554.

(164) Michaels, ‘Umdenken für die UNIDROIT-Prinzipien’.