The Making of Transnational Contract Law

The definition and creation of contract law is entrenched in a common understanding of the strong role of the modern state in the administration of justice. This article argues that this understanding is currently subject to a fundamental transformation as a result of the increasing demand for legal certainty in cross-border transactions. Traditional concepts of private international law, mainly the law of conflicts and multilateral treaty harmonization, have proven unable to keep pace with globalization, allowing private actors to step in and gain a dominant position in providing legal services to international commerce. The resulting privatization of lawmaking leads to concerns regarding the legitimacy of transnational contract law. This paper suggests using the concepts of “rough consensus” and “running code” to reconceptualize the ideas of democratic lawmaking under the rule of law in order to adapt them to the reality of transnational lawmaking.