Introduction

Law, private law in particular, has a capacity – perhaps a natural inclination – to become rigid or even stultify. It may be asked why this is the case. In regulation, the law is what a State orders or decrees it to be and as such it is what it is. But if we step back from the idea that all law, including private law, issues from a sovereign and accepts instead other sources of law besides legislation (or treaty law) and implementing case-law, like fundamental principles (now often human rights-related but earlier often referred to as natural law having a strong moral or even religious connotation), custom or industry practices, general principles (which may be found among the more advanced legal systems or in reason or common sense) and party autonomy, this broader perspective would suggest that there is ample room for private law to reform itself.

One may recognise here the sources of law that for public international law are recognised in Art. 38(1) of the Statute of the International Court of Justice (ICJ). Like public international law, private law may move forward independently in a similar manner, at least at the international level. This is the modern idea of its transnationalisation and, in international commerce and finance, of the modern lex mercatoria, which is then perceived as depending on these various sources of law and maintaining a hierarchy of rules emanating from them.