84 This result is actually not surprising. Recall that one main goal of the PICC was to overcome the uncertainties involved in choice of law. 85 The goal was not, thus, to add yet another law to the number of laws that can be chosen but, instead, to make such a choice dispensable altogether. Put differently, the point was not to raise the number of eligible laws (which would be attractive for a competition of 80 Council Regulation (EC) 593/2008 on the law applicable to contractual obligations  OJ L177 recital 13; ZS Tang, ‘Non-State Law in Party Autonomy: A European Perspective’ (2012) 5 International Journal of Private Law 22. 81 See R Michaels, ‘Non-State Law in the Hague Principles on Choice of Law in International Commercial Contracts’ in Kai Purnhagen and Peter Rott (eds), Varieties of European Economic Law and Regulation: Essays in Honour of Hans Micklitz (Springer 2014) 43. 82 Michaels (n 4) para 70 with references. 83 Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law , Doc COM(2011) 635 final [CESL]. 84 For consequences concerning a choice of law clause, see Michaels (n 4) paras 52–7. 85 Bonell, An International Restatement of Contract Law (n 11 above) 13. The U NIDROIT Principles as global background law 663 Rev. dr. unif., Vol. 19, 2014, 643–668 at The Australian National University on January 19, 2015 Downloaded from
legal orders) 86 but, instead, to establish a common core of the existing contract laws. Their nature as a restatement is an additional good reason for why they are rarely chosen as the applicable law—US restatements, the inspiration for this nature, are never chosen as applicable law either. 2. The PICC as applicable law absent a choice? Arguably, the focus on choice of the PICC has overshadowed a potentially more important role the PICC could play, namely as the applicable law in the absence of a party choice. In principle, this role is excluded in current private international law. 87 The Governing Council of U NIDROIT , consequently, had rejected a compar- able express function of the PICC in their original version. 88 It was introduced into the preamble in 2004 after encouraging experiences in arbitral practice. 89 Indeed, State choice of law regimes do not allow for application of the PICC as objective contract law. 90 The situation is different in arbitration, where the arbitrator is not bound to the ordinary State choice-of-law rules but can, instead, through ‘ voie directe ’, determine the applicable legal rules. This is so at least when the relevant arbitral law speaks of ‘rules of law’ and not, for example, as in Article 28(2) of the UNCITRAL Model Law on International Commercial Arbitration, of ‘law’. 91 However, the notion ‘rules of law’ already makes it clear that the PICC, when they are applicable, apply as individual rules, not as a whole legal order. Indeed, what we see in practice is that even if arbitrators apply the PICC, they rarely do so to the exclusion of other law.
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