Originally from World Arbitration And Mediation Review (WAMR)

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A SURVEY OF TRANSNATIONAL LEGAL

PRINCIPLES IN U.S. COURTS
David W. Rivkin*

I. INTRODUCTION

The manner in which foreign and international legal
principles are applied in United States (“U.S.”) courts generally
leaves something to be desired. U.S. courts are often reluctant to
apply transnational legal principles in commercial cases. This
reluctance may stem from the unique relationship between
domestic and international law as interpreted under the U.S.
Constitution, as well as the development of a comprehensive
domestic commercial law.

This Article provides an illustrative survey of instances in
which U.S. courts have had the opportunity to apply international
principles of law in both commercial and non-commercial cases.
It draws lessons from a broad range of case law that indicates the
circumstances under which a court is mostly likely to apply
transnational legal principles in commercial matters. First, this
Article explores larger jurisprudential trends in the U.S. that lead
to the non-application of those principles. Then, the Article
discusses those instances in which U.S. courts are more willing to
embrace transnational legal principles as part of their
interpretive framework, with case studies to illustrate. The
Article will address these instances as they fall under various
international frameworks: cases using customary international
law; international “soft-law;” and, finally, domestic treatment of
treaty law. The Article concludes by framing the conditions under
which courts may be more likely to apply transnational legal
principles in commercial cases.