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Reproduced with permission of 38 American Journal of Comparative Law (1990) 865-888

International Uniform Law in Practice -- Or Where the Real Trouble Begins

Michael Joachim Bonell [*]

[Introduction]
Uniform Law and its Introduction into National Law
-    The experience of the law of the European Communities
-    Uniform law and the developing countries
-    The federal experience
-    Other issues
-    Conclusion
Uniform Law and its Application by Judges and Arbitrators
-    The CMEA General Conditions and their application by the courts of arbitration of the socialist countries
-    The interpretation of the Uniform Commercial Code by the courts in the United States
-    The role of the European Court of Justice in the interpretation and application of Community law
-    Other issues
-    Conclusion
Uniform Law and its Impact on Business Circles
-    The impact of the uniform sales law
-    The application of uniform transport law
-    The position of economic operators in developing countries
-    The position of the legal profession
-    Other issues
-    Conclusion

[INTRODUCTION]

Our times are characterized by a multiplicity of initiatives directed towards the unification or at least the harmonization of national laws. It is no longer possible to count the number of international conventions, uniform laws, codes, and rules of conduct that attempt to regulate the most varied aspects not only of private but also of public law by means of uniform rules intended also to meet practical needs.[1] Sometimes the individual conventions and uniform laws aim at a universal application, while others apply only to defined groups of states or regions. In some instances they seek to replace the corresponding domestic law completely, while in others their aim is simply to regulate international relations, the parallel domestic law continuing to regulate purely internal relations. Another distinction concerns the applicability of the uniform law. Its rules normally become effective only after their introduction into the individual legal systems by means of the appropriate ratification procedure. There are, however, examples of international uniform rules which, once approved by the competent organs of supranational or community organizations, become immediately applicable. Finally, there may be model rules which have no binding force, the introduction of which into the various national systems is left entirely to the discretion of states.

Lawyers usually have focused almost exclusively on questions relating to the feasibility and desirability of unifying various areas of law at an international level, and on the methods or "techniques" which should be employed to that end.[2] These traditional questions [page 865] have not been completely solved; on the contrary, now that more and more international bodies have become active in the unification process, and have embarked on projects sometimes even without informing other organizations of their initiatives, the question of how to ensure greater coordination of the various initiatives is still a matter of the utmost importance.[3]

Apart from these traditional questions, however, a relatively new problem increasingly calls for the attention not only of academics but above all of legal practitioners: the fate of these uniform rules in practice, once they have been approved at the international level. The approval of a particular convention or uniform law constitutes only the first, albeit important, stage in the process of unification. Furthermore, the process requires not only the incorporation of the contents of the convention or uniform rules into the domestic law of each of the states concerned, but also their uniform interpretation by national judges and their actual application by those operating in the affected economic sectors.

This second stage has so far been rather neglected, despite the numerous problems involved and the need to provide for their satisfactory solution in practice.[4]

So far as the introduction of the uniform law into the various national legal systems is concerned, one only has to think of the use (or misuse) of the various reservation clauses which states continue to use when ratifying internationally negotiated agreements, limiting [page 866] their unifying effect from the outset;[5] of the different techniques employed to translate uniform law into domestic law and of the distortions, sometimes quite considerable, to which uniform law texts are subjected by their incorporation into national legal systems;[6] of the inadequate coordination often found between uniform rules of a substantive character and those uniform rules concerning the conflict of laws, and of the uncertainty which results from the ratification by the individual states of the former, the latter, or both;[7] of the various bureaucratic obstacles (e.g., possible conflicts of competence be they positive or negative in character -- between the various branches of public administration or, more simply, the lack of qualified personnel to carry out the necessary procedures) which often stand in the way of a rapid ratification of internationally agreed rules; of the need to provide translations of the text of the uniform law into the languages of the states concerned and of the risk that these translations might not accurately reflect the original version, particularly as this concerns essential aspects of the agreed rules.

As regards the interpretation and application of the uniform law, it should be borne in mind that in the absence of a supranational organ capable of ensuring its uniform interpretation there is always the risk that it will be interpreted differently in each state. Some improvement upon the present situation might arise out of the increasingly common practice of inserting provisions in international conventions or uniform laws requiring the national judge or private arbitrator to take account of their international character and of the need to promote their uniform application when interpreting them, and, in the case of lacunae, to refer in the first place to the "general principles" to be derived from the text of the uniform law itself, and to resort only in the last instance to their own or any other state's domestic law.[8] [page 867]

Finally, so far as the impact of uniform law on business circles is concerned, it is well known that most of the time the situation is, to say the least, paradoxical. Entire generations of specialists have devoted their energies to working out uniform rules, seeking in each case to find solutions which best meet the practical needs of the time; but once a convention has finally been approved, there is a serious risk of it remaining a dead letter in practice, since those to whom (and for whose benefit) it is principally directed; i.e., the economic operators actually involved in the trade sectors in question, take no notice of it or, when it is brought to their attention, do everything in their power to escape its application.[9] What solutions have been put forward to rectify this state of affairs? Is it really only a matter of spreading knowledge of the uniform law within the economic and professional sectors directly concerned, or do we not need, above all, to ensure that these interested parties are adequately involved in the preparation of the various uniform laws? Furthermore, given that the uniform law represents an unknown entity, the precise effect of which is difficult to grasp right away, while the domestic law is not only familiar but often more favorable from the point of view of its contents, why should one be surprised if the party in a stronger economic position does everything in its power to avoid the application of the uniform law? Would it not be more realistic to re-examine the relationship between uniform law and personal autonomy as it has been conceived until now, and to reduce as far as possible the opportunity for the parties to exclude the application of the uniform law in their own interest?

In order to examine these and other related themes in depth, in September 1987 the International Institute for the Unification of Private Law (UNIDROIT), following its tradition of hosting meetings for the discussion of current problems encountered in the process of unification, particularly in the field of international trade law,[10] organized an international congress on "uniform law in practice." [page 868] Academics and legal practitioners from 62 countries attended the congress, thus confirming the great interest in the subject held by the international legal community.

The high level of the discussion of that congress is evident in its acts and proceedings, edited by UNIDROIT under the title "International Uniform Law in Practice." The order of presentation below, follows that of the proceedings of the congress; i.e., the various contributions appear under three main sections or themes: "Uniform law and its introduction into national law" (I), "Uniform law and its application by judges and arbitrators" (II), and "Uniform law and its impact on business circles" (III).

UNIFORM LAW AND ITS INTRODUCTION INTO NATIONAL LAW

The experience of the law of the European Communities

The first section, dealing with the introduction of the various international instruments into national law, opens with a report on "The incorporation of Community law into the domestic laws of the member States of the European Communities" by Federico Mancini, Advocate-General at the Court of Justice of the European Communities.[11] After drawing the necessary distinction between the so-called primary sources of community law (i.e., the Treaties establishing the Communities together with, for the new members, the entire "acquis communautaire," and the recent Single European Act) and the so-called secondary Community law (i.e., the legislation adopted by the Council and the Commission in order to achieve the objectives of the Treaties), Professor Mancini concentrates mainly on two particular types of secondary legislation, regulations and directives, drawing attention to the many problems that their adoption causes within the Member States. Obstacles to the direct and uniform application of regulations may be created by national legislatures through delay in the adoption of the needed implementing or amending measures; or, even worse, through adoption of measures that conceal the Community nature of the rules concerned. Other problems derive from the conflicts which may arise between Community regulations and national constitutional provisions, or between these same regulations and pre-existing or subsequent ordinary domestic laws. With regard to the directives, the most delicate question concerns the possibility that they may be given direct effect and thus invoked before national courts even in the absence of implementing legislation. [page 869]

The search for a solution to all these problems is a matter of the utmost importance to the proper functioning of the Community institutions. One gets the clear impression from Professor Mancini's report that, despite an initial period of uncertainty and differences of opinion, the Member States do increasingly tend to resort to solutions that privilege Community law to the detriment of national law. Credit for this must be given above all to the European Court of Justice, which from its inception has firmly supported the theory of the existence of a true Community legal order, within which the sources of Community law are integrated with those of the Member States, not merely coordinated as is the case with the sources of general international law.

Uniform law and the developing countries

Far less encouraging is the picture that emerges from the two subsequent reports on "The experience of Latin American States" by Antonio Boggiano of the University of Buenos Aires [12] and "L'éxperience du droit uniforme dans les pays d'Afrique" by Keba Mbaye, Vice-President of the International Court of Justice.[13]

In Africa and Latin America, the introduction of uniform law still faces political as well as technical difficulties. At least until recently, there has been an entirely inadequate participation on the part of the counties of these regions in the preparation of international instruments of uniform law. In addition, given the insufficient development of domestic law in many of these countries, above all in Africa, their competent authorities have more urgent problems to cope with than the ratification of the various uniform laws approved at the international level. From a technical point of view, the main obstacles derive from the considerable difficulties encountered by businessmen and lawyers from these countries in interpreting and applying legal texts that have been drafted in a style and using terminology with which they are not familiar; not to mention the problem of how to ensure that there is a correct translation of the original version(s) of these texts into the various national languages.

What are the prospects for the future? While Judge Mbaye appears to be rather pessimistic, suggesting that over ambitious unification or harmonization projects be abandoned for the moment and efforts rather be directed towards initiatives limited as to territory and subject matter, Professor Boggiano, probably influenced by his positive experience as representative of his country at UNCITRAL and the Hague Conference on Private International Law, is more [page 870] confident as to the possible diffusion of uniform law in developing countries. An essential requirement for this purpose, however, is a wider knowledge, on the part of these countries, not only of the individual legal instruments themselves, but above all of the way in which they are interpreted and applied in other parts of the world, in particular in countries with greater experience in this field.

The federal experience

Patrick Brazil's report on "The Experience of Federal States"[14] is a clear illustration of the additional obstacles which the process of international legal unification may come up against in these states as a result of their particular internal structure. In view of the fact that it is very difficult to deal with this topic in general terms, almost every federal state falling into a category of its own, the report mainly focuses on the United States of America, Australia and Canada. What these three countries have in common is that they have recently discovered the usefulness of the unification of law at an international level, but as a result of their federal structure still encounter considerable difficulty in introducing uniform laws into their internal systems. In the final analysis, this depends on the division of legislative powers between federal and state authorities. The situation is relatively simple in the United States, in the sense that the regulation of interstate commerce falls within the exclusive competence of Congress (cf. Art. 1(8) of the Constitution), which thus has the power to promulgate a law giving direct effect throughout the territory of the Union to the various conventions and uniform laws dealing with international trade law. Far more complicated is the situation in both Australia and Canada, where an international convention can only enter into force once, and to the extent that, the individual states, on the basis of a simple, non-binding recommendation of the federal government, have enacted the necessary implementing legislation. These countries, however, recently have introduced special mechanisms to promote consultation and cooperation between the federal government and the single states or units in the negotiation and/or implementation of treaties; thus, in Australia, a "Standing Committee of Attorneys-General" has been set up for this purpose and, although it lacks any statutory basis, its effectiveness many be appreciated considering that Australia was among the first countries to adopt the Vienna Sales Convention and the UNCITRAL Model Law on International Commercial Arbitration. [page 871]

Other issues

The various topics dealt with in the main reports are taken up and further examined in a series of contributions, among which it is worth recalling those of K.H. Ameli (Iran),[15] C. Angarita Baron (Colombia),[16] S.G. Berberi (Sudan),[17] E. Dienes-Oehm (Hungary),[18] S. Hartono (Indonesia),[19] J. Ruzicka (Czechoslovakia),[20] E. Skalidis (Greece),[21] T.B. Smith (Canada),[22] S. Sucharitkul (Thailand)[23] and R. Viñas Farre (Spain)[24] on the experiences in their respective countries as regards the introduction of uniform law; of Hu Wen Zhi of the Asian-African Legal Consultative Committee,[25] G.R. Jackson of the Uniform Law Conference of Canada [26] and of S. Melone of the Central African Customs Union [27] on the roles played by these bodies in the promotion of uniform law within the regions or geopolitical areas for which they are responsible; of L. Del Duca (United States),[28] J. Ramberg (Sweden)[29] and L. Sevón (Finland)[30] on the effects that the various techniques of incorporating uniform law into the national legal systems can have on its correct interpretation and application by the judiciary; and of R. Sacco (Italy) on the highly topical problem of the relationship between uniform law and constitutional provisions of individual states.[31]

Conclusion

Faced with such a varied and on the whole not too encouraging a picture, one is led to conclude that in the process of the unification of law, despite the enthusiasm which normally accompanies the adoption of an international convention or uniform law, the real [page 872] trouble starts immediately thereafter, when the new instrument has to be introduced into the domestic law of the various states.

Professor Roland Loewe, former Director General of the Federal Ministry of Justice, Vienna, in his general report [32] emphasizes the possible remedies for bureaucratic delays, parliamentary inertia, and the risk that in the national implementation process legislative modifications may threaten the uniformity achieved with such difficulty at an international Level. Some important precautions can be taken when drafting the international uniform rules: for instance, the use of neutral or "a-national" language that does not contain terms or concepts peculiar to a particular domestic law; or the adoption of conventions directly embodying the text of the uniform rules, instead of instruments merely imposing an obligation on the states to bring into force the uniform rules that themselves are only referenced in an annexed document. As to methods of national implementation, preference should be given, whenever possible, to a "direct" incorporation by legislation simply providing for the entry into force of the international instrument itself, as annexed, as opposed to an "indirect" incorporation; i.e., by promulgating ordinary domestic legislation casting the uniform rules into national statutory language. Only in the former case is an exact and prompt incorporation of the internationally agreed uniform rules into the domestic law of the individual states certain. In the second case, there is the obvious risk of distortion of the original text of the uniform law, thus stripping the unification process of any real effect.

UNIFORM LAW AND ITS APPLICATION BY JUDGES AND ARBITRATORS

The CMEA General Conditions and their application by the courts of arbitration of the socialist countries

The section dealing with the interpretation of uniform, law by judges and arbitrators opens with a report on "Les actes normatifs réglementant la coopération économique, scientifique et technique entre les organismes des pays membres du CAEM et leur interprétation dans la pratique arbitrale de ces pays," by Konstantin L. Razumow Director of the Arbitration Department, U.S.S.R. Chamber of Commerce and Industry.[33]

As is well-known, the widest possible unification of the rules regulating the economic relationships between its member states was from the start one of the principal objectives of the Council for Mutual Economic Assistance (CMEA/CAEM). Among the most important results are the "General Conditions of Delivery Goods" of [page 873] 1968/1979, the "General Conditions for the Maintenance of Machinery, Plant and Other Industrial Products" of 1962, the "General Conditions for the Installation and Other Technical Services Relating to the Supply of Industrial Plants and Machinery" of 1974, and the "General Conditions for Specialisation and Cooperation in Production" of 1980. All of these "General Conditions", which in fact have the status of statutory law, provide that the resolution of disputes between the parties shall fall within the exclusive jurisdiction of the Courts of Arbitration at the Chambers of Commerce of their respective countries. Moreover, in order to ensure to the greatest possible extent that these instruments are applied in a uniform manner, these same Courts of Arbitration exchange information and hold periodical consultations concerning the major problems of interpretation that they have come up against in practice.

At first sight this might appear to be an almost perfect system, which, in terms of efficiency, could only be surpassed by the establishment of an international court with the power to give binding rulings on matters of interpretation. However, as Mr. Razumov's report implies, the described system is not without problems, both of a theoretical and of a practical nature. To begin with, the periodical conferences held by the Courts of Arbitration have no decision-making power, with the result that each Court remains free to continue to follow its own interpretation, even at the risk -- as seems to be quite frequently the case with the Moscow Court of Arbitration -- of finding itself in an isolated position. This situation, unsatisfactory in itself, is further aggravated by the existence of profound divergences as to the methodological approach to be followed in the interpretation of the uniform law. On the one hand, it is maintained -- and this view seems to be shared by Mr. Razumov himself and by the majority of legal writing and court decisions in his country -- that the "General Conditions," being adopted by an agreement between States cannot be applied by analogy, with the result that matters which are not expressly regulated by them must be settled in accordance with the domestic law applicable by virtue of the conflict of laws rules of the forum. On the other hand, there are those who object that these same "General Conditions," once incorporated into the various national legal systems, lose their original character as an international treaty, and not only may be applied by analogy, but in order to strive for the uniformity that these instruments were intended to achieve, the courts may recur to non-unified domestic law in the case of lacunae only as a last resort, if it is impossible to find a solution within the uniform law.

One gets the distinct impression that political considerations also fed this disagreement, in the sense that immediate recourse to domestic law in the case of ambiguity or lacunae was clearly in the [page 874] interest of those States which, due to their economic and political superiority, had good reason to assume that in practice theirs would almost always be the law to be applied. Whether this situation will continue under the new conditions is uncertain.

The interpretation of the Uniform Commercial Code by the courts in the United States

Quite different, and for obvious reasons far less problematic, is the situation with another important regional initiative of legislative unification of law; i.e., the Uniform Commercial Code of the United States, as illustrated by John Honnold, Schnader Professor of Law Emeritus at the University of Pennsylvania, in his report on "The United States Uniform Commercial Code: Interpretation by the Courts of the States of the Union."[34]

Drawn up in the 1950s by the National Conference of Commissioners on Uniform State Laws and the American Law Institute in the form of a model code, the Code has been introduced without substantial amendments into practically all of the States of the Union. It is an integral part of the laws of the individual states, which are in principle available for the purpose of interpretation and the filling of possible gaps, irrespective of whether the matter is before a federal or a State court. If, notwithstanding this, Professor Honnold views the first twenty years of the Code's application as a success, in the sense that it has been interpreted uniformly throughout the country, this is due to two main reasons: to the existence in the Code itself of a provision inviting courts to take into account, in its interpretation, the need "to make uniform the law among the various jurisdictions" (1-102); and to the willingness of the state courts to consider not only their own precedents but also, at least to a degree, the decisions of the courts of other states.

In the opinion of Professor Honnold, this augurs well for a similar open-minded and constructive attitude towards the Vienna Sales Convention, which recently entered into force in the United States, and will be applied to international import or export contracts instead of the corresponding provisions of the U.C.C.

Some skepticism may, however, be justified. With respect to the U.C.C., American judges have access to tried and tested reporting services from which they can instantly obtain a full and clear picture of the judicial precedent that has developed in the individual states in relation to a particular provision and/or question. So far as the Vienna Sales Convention is concerned, not only do similar sources of information still have to be created, but their consultation [page 875] will cause greater problems, in view of the differences in language and style of decisions rendered in various parts of the world.

The role of the European Court of Justice in the interpretation and application of Community law

As is well known, the European Court of Justice, established by the EEC Treaty with the task of ensuring "that in the interpretation and application of [the] Treaty the law is observed" (Art. 164), was not conceived by the founding fathers of the European Communities as having the power to decide a case involving Community law on its merits, and to substitute its own decision for that of the national courts. Formally, the Court is only vested with a number of specific powers, such as proceeding against Member States for failure to fulfill an obligation under the Treaties (Arts. 169-171), reviewing the legality of both legislative and administrative acts of the Community institutions (Arts. 173-176), and giving preliminary rulings on the interpretation or validity of both primary and secondary Community law (Art. 177).

If despite these limitations the Court has managed to exercise an effective control not only over the correct functioning of the Community institutions, but also over the prompt and uniform application of Community measures in all of the Member States, this -- as demonstrated by Jurgen Schwarze, Professor of Law at the University of Hamburg, in his report on "The role of the European Court of Justice (ECJ) in the interpretation of uniform law among the Member States of the European Communities (EC)"[35] -- is due to the great ability demonstrated by the Court itself in interpreting its own powers in an extensive manner and, above all, in developing a series of basic principles relating both to the nature of Community law and to its relationship to the individual national laws the effect of which was to strengthen its own position vis-à-vis the national courts. As an illustration of the extensive interpretation of the powers of the Court, suffice it to mention its tendency to permit review under Art. 173 of the EEC Treaty even of acts of the Commission or the Council that formally cannot be classified as regulations, directives or decisions within the terms of Art. 189 of the EEC Treaty, or its rejection of the so-called "acte clair" doctrine, by which national courts at times have attempted to circumvent their duty to submit a reference for a preliminary ruling under Art. 177. So far as the interpretation of Community law is concerned, reference may be made to the assertion of the principle of the supremacy of Community law and its direct applicability within the Member States, or to the Court's acknowledgment of fundamental rights within the Community's [page 876] legal order, to be derived not only from the constitutional traditions of the single Member States, but also from the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The only unresolved problem would appear to be the actual effect of the interpretative judgments rendered by the Court, since their binding force formally extends only to the particular case in which the Court's intervention was requested. But even in this respect Professor Schwarze's conclusions are far from discouraging. If it is true that national courts are free to disregard prior rulings of the Court when deciding a subsequent case, it is also true that in practice the Court itself, whenever seized of a legal issue that has already been decided, will refer to its own precedents where appropriate. Thus, the judgments of the Court, without technically developing an erga omnes effect, assume the character pf authoritative evidence of Community law. In turn, this increasingly induces national judges to accept the precedents of the Court voluntarily, and no longer to insist on their formal prerogative to place previously decided questions before the Court, with the risk of seeing them resolved again and again in exactly the same way.

Other issues

Among the numerous additional contributions related to the subject of the interpretation of uniform law by national judges and arbitrators, it is worth mentioning in particular those of Z. Stalev (Bulgaria)[36] and P. Komaromi (Hungary)[37] on the experience of the Courts of Arbitration of their respective countries; of E. Krings (Belgium) on the role of the Benelux Court in the interpretation of the uniform law elaborated by the three Benelux countries;[38] of V. Librando (Italy) on judicial cooperation within the ambit of the European Communities;[39] of F. Majoros (Federal Republic of Germany) on the special nature of uniform law conventions as compared with ordinary treaties and on the rules applicable in cases of conflict between different conventions;[40] of G. Reinhart (Federal Republic of Germany) on the importance of the comparative approach in the interpretation, not only of uniform law, but also of domestic law;[41] of S. Ferreri (Italy)[42] and J. Skapski (Poland)[43] on the [page 877] importance of a comparative basis in the professional training of judges and lawyers; of G. Gorla (Italy) on the need for the development, along with uniform legislation, of a communis opinio et interpretatio among jurists;[44] of P. Carlini (Italy)[45] and B. Klingsporn (Federal Republic of Germany)[46] on the problems arising whenever there is a conflict between the official version(s) of a uniform law text and a translation into another language; of S. Rognlien (Norway) on the difficulties encountered by judges, sometimes simply because of the existence of linguistic barriers, when seeking to take into account the interpretation given to a particular uniform law in other countries;[47] and of U. Drobnig (Federal Republic of Germany) on the more active role which the international organizations concerned should take in order to ensure that the uniform law prepared under their auspices is properly interpreted and applied in practice.[48]

A paper submitted by the writer of this article [49] proposes the creation, for each of the existing uniform laws, of a sort of "permanent editorial board," composed of representatives of all the contracting States and with the task of collecting and systematically comparing the decisions rendered by the different national courts in applying the particular uniform law. The idea behind this proposal is to ensure that only those States which have actually ratified a particular convention play an active role in its implementation, while also ensuring equal attention to each national experience without privileging any particular country and/or region for political, economic or even purely linguistic reasons. It may be pointed out that in the meantime UNCITRAL, in partially accepting the formal proposal presented to this effect by the Italian delegation, decided to ask the States that are parties to the Vienna Sales Convention to appoint "national correspondents" with the task not only of collecting the national case law on the Convention, but also, and above all, of determining the editorial criteria to be followed in the presentation of the decisions.[50]

Conclusion

The general report of Fritz Enderlein, former Director of the Institute for Foreign and Comparative Law of the Academy of Political [page 878] and Legal Science of the German Democratic Republic, on the "Uniform law and its application by judges and arbitrators"[51] will certainly for some time remain a fundamental point of reference for anyone dealing with this subject.

In his report Professor Enderlein stresses above all that to have regard -- to use the words of the Vienna Sales Convention -- "to [the] international character and to the need to promote uniformity in [the] application" constitutes a methodological requirement common to the interpretation of all uniform laws, whether or not they contain an express provision to this effect. To have regard to the "international character" of a uniform rule does not, however, mean considering it as one considers ordinary international treaties and applying the rules of interpretation used in respect of the latter. It is one thing for two or more states, either in derogation from or in the application of general international law, to regulate their respective rights and obligations as between themselves by means of a treaty. It is quite another for states to regulate relations between private individuals by means of a convention. Looked at in this context, a uniform law text is no different from the text of an analogous domestic law and, as in that case, must be considered capable, if need be, of an interpretation that goes beyond its literal meaning, even to the extent of its application by analogy. The only peculiarity deriving from its international origins is the need to interpret the terms and concepts expressed by it in an autonomous manner, and not through references to the meaning given to them within anyone national legal system.

Given the need to promote the greatest possible uniformity in the application of each convention, it is only too clear that the ultimate aim towards which uniform laws, by their very definition, are directed, i.e., the setting-up of internationally uniform legal regimes in respect of the subject matters covered by them, would be seriously compromised if these same uniform laws, once accepted by the contracting States, were then applied differently within the different national legal systems. However, as Professor Enderlein correctly underlines, one must avoid excessive rigidity in this respect. While as a general rule there should be a tendency to apply the prevailing interpretation arising at an international level, there may well be valid reasons to depart from foreign precedents and to look for more accurate and progressive solutions domestically.

In any case, it remains to be seen how adequate and consistent information on the case law of the various countries in the area of uniform law can be guaranteed. This problem is not limited to the choice of or the techniques best suited to the provision of information [page 879] that is at the same time easily accessible and as inexpensive as possible (publication in a printed form or by means of an electronic data bank, official documents to be distributed through the usual diplomatic channels or publications of a commercial character, etc.). It also concerns the determination of the criteria to be used in the collection and the presentation of the rich sources of available material (to collect individual decisions in their full text or in a version that has been re-elaborated in some way, the choice of the language in which to define the key words and concepts so as to provide a consistent classification ratione materiae of the various national decisions collected, etc.). Notwithstanding some initiatives already undertaken in this area (such as the publication of selected uniform law cases by the Uniform Law Review, edited by the UNIDROIT. Secretariat), there is still much to be done. It is a source of satisfaction to this writer that Professor Enderlein supports the idea of the establishment, at least in respect to an important uniform law such as the Vienna Sales Convention, of a special body entrusted with the task of collecting and comparing the various national decisions.

UNIFORM LAW AND ITS IMPACT ON BUSINESS CIRCLES

The impact of the uniform sales law

The third section, dealing with the impact of the various kinds of uniform law on business circles, may be regarded as the most original of the whole volume.

The first report, by Philip Kahn, Director of the Centre de recherche sur le droit des marches et des investissements internationaux of Dijon, on the uniform sales law [52] is framed in pessimistic terms. Its basic message is that, notwithstanding the considerable efforts made by the international community to achieve uniformity in the field of international sales contracts, the results are disappointing. The various conventions, whether on the conflict of laws or on substantive law, have so far had very little impact, if any, on international contract practice.

What are the reasons for the indifference, even hostility, towards uniform law supposedly found in business circles? In part it may be due simply to a lack of information about the contents and effects of the individual instruments, of uniform law. More often, however, there would appear to be a complete rejection motivated by considerations of merit. The provisions of the substantive law conventions are regarded as far too general and inadequate to meet the needs of the different kinds of transactions currently used in international trade practice. Thus, their application is seen to be of no [page 880] use, indeed even counterproductive; on the other hand, the conventions themselves do not favor their own application, since their recognition of the parties' autonomy encourages the use of the numerous standard form contracts drafted by the various trade associations, which at least implicitly exclude the uniform law provisions.

This analysis may reflect a state of mind to be found within certain professional circles. But from an expert in international trade law like Professor Kahn, one might expect something more than an account of fears and prejudices encountered in practice; not even an up-to-date one, since it does not consider recent information on the exceedingly positive reception of the two 1964 Hague Uniform Laws by business circles in the Federal Republic of Germany. The complaints regarding the supposed insufficiencies in the context of the existing Uniform laws are themselves the direct result of an obvious lack of information. Anyone familiar with the two 1964 Hague Uniform Laws or the Vienna Sales Convention, on the one hand, and the provisions usually contained in the general conditions or standard form contracts used in the various sectors of international trade, on the other, cannot fail to agree that these two different kinds of instruments not only are compatible, but indeed totally complementary. The uniform legislation lays down the fundamental principles of the formation, interpretation, performance and nonperformance of sales contracts in general, while the different instruments of the so-called lex mercatoria are intended to provide a detailed regulation of those aspects that assume particular importance for the particular type of slue concerned. Ensuring the application of the latter does not require exclusion of the former in toto. Moreover, legislation such as the 1964 Hague Uniform Laws and especially the 1980 Vienna Sales Convention have the great advantage of providing the contracting parties with a modem and internationally uniform legal framework within which to negotiate the specific terms of their agreement in conformity with the needs and requirements of the individual transaction.

The application of the uniform transport law

The impact of uniform law on business practices in, the area of transport is of a quite different nature. All of the most important international conventions relating to transport by sea, air, rail and road adopted during the first half of this century have been received extremely favorably in practice, as is shown by the large number of states that have adopted them.

According to Kurt Gronfors, Professor of Law at the University [page 881] of Gothenburg and the author of a report on "Transport Law,"[53] this is mainly due to the fact that these conventions were prepared on the initiative and with the direct participation of the business circles concerned. Suffice it to mention the 1924 Brussels Convention on Carriage of Goods by Sea and the decisive role played in its elaboration by the Comité Maritime International, or the 1929 Warsaw Convention on the International Carriage by Air, promoted by the Comité international technique d'experts juridiques aériens. The new uniform rules had a much more limited success when the initiative for unification of law in this field of transport law passed in the 1970s from the respective professional associations to special intergovernmental bodies meanwhile established within the United Nations family. Typical examples are the 1980 Geneva Convention on International Multimodal Transport, drafted under the auspices of UNCTAD and adopted only by a small number of states, most of then developing countries and the 1978 Hamburg Convention on the Carriage of Goods by Sea, prepared by UNCITRAL in collaboration with UNCTAD, which also has not yet entered into force.

Does the more or less favorable impact of uniform law on the business world, then, depend on the extent to which the latter participates in the preparation of the particular uniform law in question? There is certainly much truth in such a conclusion, but it does not seem sufficient to explain the differing success of the various conventions in the field of transport law. After all, Professor Gronfors himself recalls that, while the 1924 Brussels Convention on Carriage of Goods by Sea expressly includes error in navigation among the circumstances the carrier is entitled to invoke as a possible grounds for relief from liability, one of the most important innovations of the 1978 Hamburg Convention, intended to replace the Brussels Convention, is precisely the deletion of this particular exonerating event, long considered to lack any justification and to excessively favor the interests of the carrier and shipowner. But if this is so, the fact that the shipowners (and consequently the States in which the interests of this particular business category are prevalent) continue to stick with the Brussels Convention and to oppose the Hamburg Convention probably depends less on the different degrees of participation of these circles in the preparation of the two conventions, than on the consideration that the contents of the former clearly are more favorable to their interests than those of the latter.

The position of economic operators in developing countries

Among the reasons given today for an even wider unification of [page 882] law is the commonly held general need of the developing countries to have at their disposal, in their relationships with the industrialized nations, a set of rules not only internationally uniform and thus more predictable in their application, but also more evenly balanced in content than the traditional national laws. But to what extent is this actually the case in practice and, above all, what is the opinion in this respect of the developing countries themselves?

Even though in his report, "The Experience of Economic Operators from Developing Countries: Uniform Law and the Chinese Foreign Economic and Trade Corporations," Wang Zhenpu, Deputy Director at the Ministry of Foreign Economic Relations and Trade of the People's Republic of China,[54] concentrates almost exclusively on the experience encountered by China, his conclusions may be of a more general nature.

The first and perhaps most significant finding is that the importance of the various uniform laws prepared at an international level for the economic relationships of developing countries is much greater than appears from the official figures. Even in the absence of a formal adoption by the developing countries of the different conventions or uniform laws, economic operators from these countries rely on them when negotiating contracts with businessmen from the industrialized countries, either by referring to them simply as a guide for the drafting of individual contracts or even by choosing them as the law that will govern the particular relationship. Thus, for example, although the 1924 Brussels Convention on Carriage of Goods by Sea has not been ratified by China, all bills of lading issued by the China Ocean Shipping Company and the China National Foreign Trade Transportation Corporation expressly refer to it by means of a so-called "paramount clause." Again, though the 1930 Geneva Uniform Law for Bills of Exchange and Promissory Notes has not been formally incorporated into Chinese domestic law, it is widely applied by Chinese banks in their foreign relations.

The People's Republic of China might be a unique case in this respect; however, elsewhere too the 1980 Vienna Sales Convention, for example, is being used increasingly as a model for the drafting of individual contracts, sometimes even in other fields; and a number of regional arbitration centers in Asia and Africa have recently (re)written their rules of procedure on the basis of the UNCITRAL Model Law on International Commercial Arbitration.

A second and equally interesting aspect concerns the not always coherent attitude of developing countries towards some well-known examples of international "usages," such as INCOTERMS, the Uniform Customs and Practices for Documentary Credits, or even [page 883] certain British standard clauses in the field of marine insurance. While they are officially viewed with suspicion for their Western and "capitalist" origins, in practice national trade associations and enterprises are permitted, indeed encouraged, to issue instruments with a more or less identical content albeit under a different name. But if this is the case, it means one of two things. Either the criticism leveled against the above-mentioned "usages" is unfounded, and it is recognized that they provide for sufficiently balanced rules adequately to meet the requirements of the type of transactions concerned, in which case one cannot see why they should continue to be banned; or the objections are at least partly founded, in which case the conflict of interests in reality is not between industrialized and developing countries, but between those who, on either side, can use their superior bargaining power to impose their contract terms, and those who are forced to accept these terms.

The position of the legal profession

The last special report of the section is that of Jeremy Carver on "The Experience of the Legal Profession."[55]

The Rapporteur, a partner of a well-known law firm in London who represented the International Bar Association, harbors few doubts: The legal profession has always viewed the process of international unification or harmonization of law with suspicion, if not with open hostility, and this attitude still prevails today. The reasons behind this would appear to be fairly obvious: a general aversion to innovations of any kind since they involve constant updating and adaptation, and a particular distrust of legal texts which, apart from being drafted in a style and with a terminology often unfamiliar, have practical implications which are not yet clear. Faced with the alternatives of continuing to rely on familiar domestic legal instruments or venturing into the uncharted waters of uniform law, the legal practitioner acting for a client operating at an international level would unhesitatingly opt for the former. In other words, from the very outset of negotiations he will do everything possible to exclude the application of uniform law to the particular transaction, and in case of later litigation between the parties he will refrain from bringing the existence of any such uniform law to the attention of the judges or arbitrators called upon to resolve the dispute.

The only exception to this general attitude is found in relation to those uniform rules that have been developed by practice itself, in response to special technical and operational needs either totally ignored or inadequately dealt with by the traditional domestic laws. A [page 884] typical example of this are the Uniform Customs and Practice for Documentary Credits, drafted and periodically updated by the Commission on Banking Technique and Practice of the International Chamber of Commerce, which, despite their non-binding nature, are followed and applied on a voluntary basis by banks almost everywhere.

What conclusions may be drawn from this? In Mr. Carver's opinion the first thing to do, is to limit legislative unification to those sectors or areas in which the business circles concerned do not appear to be able to provide a satisfactory regulation themselves. The application of a "codified" uniform law should, however, depend on objective factors and not on the intention of the parties, who on the contrary should only to a limited extent be granted the right to exclude its application.

Such an analysis is undoubtedly somewhat disappointing to those who pursue the unification of law in the conviction that it serves, above all, the needs and interests of the business world. What remains to be seen is the extent to which this evaluation is influenced by the particular cultural and professional background of the Rapporteur. In other words, the position in which a London solicitor may find himself when faced with a choice between uniform law and domestic law is not necessarily that of his foreign colleagues. Since London is still one of the most important international financial centers, businessmen from all over the world, when concluding their transactions there, are normally prepared to accept the application of English law; whereas the same preference for the local law is not to be found when similar contracts are concluded in other parts of the world.

Other issues

Among the numerous shorter contributions relating to the general theme of uniform law and its impact on business circles, of particular interest are those of M.E. Hiscock (Australia) on the promotion of uniform laws to the relevant commercial communities;[56] of L.M. Hager (International Development Law Institute) on the promotion of uniform law among economic operators in developing countries;[57] of V. Novelli (Italy) on the use of information technology in the dissemination of uniform law;[58] of U. Magnus and R. Herber (Federal Republic of Germany) on the extensive use made of the 1964 Hague Uniform Sales Laws in the last few years among [page 885] business circles in their country;[59] of P. Del Duca (United States) on the relationship between uniform law and federal jurisdictions with particular reference to U.S. and EEC securities regulation;[60] of J. Thieffry and C. Gruber (France) on the usefulness of instruments of uniform law in the drafting of individual contracts;[61] of N. Horn (Federal Republic of Germany) on the importance of uniform law in the development of a modern commercial legal system in China;[62] of G.A. Orleans (Ghana) and S. Sucharitkul (Thailand) on the difficulties encountered by the developing countries in the area of maritime law as a result of the fact that while they themselves adhere to the most recent conventions, the industrialized nations instead continue to apply the previous conventions, thereby assuring their domestic transport industry a much more permissive legal regime;[63] of E. Bergsten (UNCITRAL) on the efforts made by his organization in promoting uniform law throughout the world;[64] and of A. Diamond (U.K.) on the lack of interest of certain business circles not only for uniform law, but for law in general.[65]

In a paper submitted by this writer, attention is drawn to the incongruous way in which the relationship between uniform law and party autonomy is normally regulated.[66] While in the absence of a uniform law the parties may exclude the application of the domestic law otherwise applicable only on condition that they choose another law to be applied in its place, the most recent conventions in the field of sales contracts extend the possibilities of the parties much further; still in the name of the traditional principle of party autonomy they grant the parties the right to exclude the application of the uniform law in its entirety even without positively designating the law which they would prefer to apply in its place.

Conclusion

It is certainly not easy to draw any definitive conclusions from such a rich and varied discussion. In his general report E. Allan Farnsworth, Professor of Law at Columbia University, New York, quite correctly points out that there can be no single answer -- be it optimistic or pessimistic -- to the question of the interaction between uniform law and the business world.[67] Instead, one should [page 886] differentiate between the various situations, taking into account a series of relevant factors.

The first of these factors is the extent to which business circles are organized. If, as is the case, for example, with maritime carriers, insurers or bankers, they have their own national or international representative bodies, it will be easy to get them directly involved in the preparation and subsequent adoption of a uniform law which concerns them. If, on the other hand, one is dealing with a less well organized professional category -- for example, with sellers and buyers of manufactured goods -- it all becomes more difficult, with the results indicated above.

The second factor to be taken into account is the extent to which business circles perceive unification of law to be significant. While at times what merchants disparage is not so much uniform law but law tout court, which is regarded as something totally negligible at least until difficulties arise in the performance of individual contracts, it is clear that, in general, the greater the technical nature of and the practical interest in a uniform law, the greater its importance in the opinion of business circles.

Much also depends on the extent to which business circles have an impact on the law absent the uniform law. The greater the freedom contract parties enjoy in domestic law, the easier it will be for the business circles concerned to elaborate their own legal rules, and the less favorably will they react to any initiative which may restrict their autonomy. In these cases it would be unwise to ignore reality and run the risk of a total failure of the unification initiative. It is far wiser to search for a compromise solution, e.g., by offering, in exchange for the introduction of a stricter liability regime, a limitation of the amount of damages recoverable.

Finally, the success of uniform law in practice does not necessarily depend on whether it is adopted in the form of a legally binding instrument. As is shown by the various Restatements of Law in the United States and by similar projects recently undertaken in Europe among the Member States of the EEC [68] and on a world-wide scale by UNIDROIT,[69] sometimes less pretentious initiatives may be as successful, if not more so, than uniform legislation.

In view of the most valuable indications contained not only in this general report but also in the other contributions, one cannot but agree with the closing remarks of Malcolm Evans, Secretary-General of UNIDROIT, in which he expresses the hope that the [page 887] outcome of the Congress may be taken into due consideration by all those who at the national or international level are engaged in the difficult task of elaborating arid promoting uniform law. It can only be hoped that the circulation of the Acts and Proceedings will be proportional to their importance. [page 888]


FOOTNOTES

* MICHAEL JOACHIM BONELL is Professor of Comparative Law at the University of Rome I "La Sapienza"; Legal Consultant of UNIDROIT.

This article is also a review of International Uniform Law in Practice. UNIDROIT (1988), containing the Acts and Proceedings of the Third Congress on Private Law held in Rome from September 7-10, 1987.

1. There is as yet no single source of information for all instruments of uniform law. In order to arrive at a sufficiently comprehensive picture of the situation, it is therefore necessary to resort to the periodical publications issued by each of the different organizations responsible for elaboration of uniform law in the various fields (e.g., ILO, WIPO, IMO or UNCITRAL within the United Nations family; the International Institute for the Unification of Private Law (UNIDROIT), the Hague Conference on Private International Law, the Council of Europe, the EEC etc.).

2. In this respect the most comprehensive study is René David, "The International Unification of Private Law," International Encyclopedia of Comparative Law, Volume II, Chapter 5, (1971). But see also, among others, Matteucci, "The Methods of the Unification of Law," in UNIDROIT, Year Book 1956, 3-101; more recently, Jan Kropholler, Internationales Einheitsrecht (1975).

3. A first attempt to tackle the problem may be seen in Resolution 34/142 of December 17, 1979 of the General Assembly of the United Nations, requesting the Secretary-General "to place before the United Nations Commission on International Trade Law, at each of its sessions, a report on the legal activities of international organizations in the field of international trade law, together with recommendations as to the steps to be taken by the Commission to fulfill its mandate of coordinating the activities of other organizations in the field." The most recent report in this respect (A/CN.9/324 of March 22, 1989) contains brief information on the current activities of 26 international intergovernmental and non-governmental organizations covering some 80 different subject matters. More detailed information may be found in the Digest of Legal Activities of International Organizations and Other Institutions, edited by UNIDROIT and published by Oceana Publications Inc.: The eighth edition of this loose-leaf service covers the current activities of 38 international organizations listed under over 150 different times.

4. For a general discussion of at least some of the problems involved see, however, Matteucci at 75; David at 90; Kropholler at 258; see also Malintoppi, "Mesures tendant à prévenir les divergences dans l'interpértation des règles de droit uniforme," in UNIDROIT Year Book 1959, 249; Jean Georges Sauveplanne, Mesures tendant à concilier les divergences et à resoudre ces divergences par voie juridictionnelle, id. at 277 et seq.; Stefania Bariatti, L'interpretazione delle convenzioni internazionali di diritto uniforme (1986).

5. Only some of the most recent international instruments contain a provision according to which the only reservations permitted are those expressly authorized in the instrument itself (e.g.. Art. 98 of the 1980 United Nations Convention on Contracts for the International Sale of Goods (hereinafter CISG). As a general rule Art. 19 of the United Nations Convention on the Law of Treaties permits the formulation of reservations unless "[...] (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specific reservations, which do not include the reservation in question, may be made; or (c) [...] the reservation is incompatible with the object and purpose of the treaty."

6. For some striking examples of distortions to which even so-called "self-executing" treaties have been subjected in some contracting states, see Kropholler at 94.

7. For some of the conflicts which inevitably derive from such a situation, see the interesting study by Paul Volken, Konventionskoriflikte im internationalen Privatrecht (1977).

8. See, for instance, Art. 7 CISG. This provision formed the basis of discussions at the XIIth International Congress of Comparative Law (Sydney-Melbourne 1986) under the item "Methodology in Applying Uniform Law for International Sales under the U.N. Sales Convention (Vienna 1980)"; for a synthesis of the various National Reports, see John O. Honnold, "Uniform Words and Uniform Application: The 1980 Sales Convention and International Juridical Practice," in Einheitliches Kaufrecht und nationales Obligationenrecht 115 (Peter Schlechtriem ed. 1987).

9. At times the desire not to be subject to instruments of uniform law amounts to a real obsession. Thus, the London Grain and Feed Trade Association, when it revised its standard contract forms in 1982, thought it necessary to include a special provision expressly excluding not only the two Uniform Sales Laws of The Hague of 1964, but also the 1980 Vienna Sales Convention, notwithstanding the fact that the latter at the time was not even in force.

10. See, among others, the first two international congresses on private law, held in 1950 and 1976 respectively (cf. Actes du Congrès international de droit privé, UNIDROIT (1951) and New Directions in International Trade Law (1977) as well as the series of "Rencontres," which were held in 1956, 1959, 1963, 1968 and 1973 and the Acts and Proceedings of which are published in the corresponding Yearbooks of UNIDROIT.

11. International Uniform Law in Practice, Acts and Proceedings of the Third Congress on Private Law held by the International Institute for the Unification of Private Law 13, UNIDROIT (1988).

12. Id. at 28.

13. Id. at 48.

14. Id. at 66.

15. Id. at 139.

16. Colombia: Some recent experiences, id. at 95.

17. Id. at 138.

18. "L'incorporation du droit uniforme dans le droit interne de la Hongrie," id. at 105.

19. "The implementation of international conventions into the domestic law of Indonesia," id. at 108.

20. Id. at 140.

21. "International uniform regulations in the field of commercial law which have been introduced into Greek law," id. at 122.

22. "The federal state clause in private international law conventions: The Canadian experience," id. at 125.

23. Id. at 133.

24. Id. at 137.

25. "Cooperation between Unidroit and the Asian-African Legal Consultative Committee," id. at 91.

26. Id. at 118.

27. Id. at 146.

28. Id. at 141.

29. Id. at 136.

30. Id. at 134.

31. Id. at 137.

32. Id. at 151.

33. Id. at 163.

34. Id. at 181.

35. Id. at 193.

36. Id. at 231.

37. Id. at 307.

38. La Cour Benelux, jurisdiction supranationale pour l'interprétation du droit uniforme Benelux, id. at 283.

39. Coopération judiciare dans le cadre de la économique européenne, id. at 259.

40. Id. at 245.

41. Id. at 264.

42. Id. at 289.

43. Id. at 317.

44. Id. at 302.

45. Id. at 319.

46. Id. at 318.

47. Id. at 309.

48. Id. at 305.

49. Id. at 241.

50. Cf. Report of the United Nations Commission on International Trade Law on the work of its twenty-first session, April 11-22, 1988. (A/43/l7), p. 24.

51. International Uniform Law in Practice 329.

52. Id. at 359.

53. Id. at 376.

54. Id. at 399.

55. Id. at 411.

56. Id. at 484.

57. Id. at 488.

58. Id. at 496.

59. Id. at 511, 513.

60. Id. at 470.

61. Id. at 516, 518.

62. Id. at 530.

63. Id. at 522-523.

64. Id. at 535.

65. Id. at 539.

66. Id. at 433.

67. Id. at 547.

68. Cf. Lando, "European Contract Law", 31 Am. J. Comp. L. 653 (1983).

69. Cf. Bonell, "A 'Restatement' of Principles for International Commercial Contracts: An Academic Exercise or a Practical Need?," in Revue de droit des affaires internationales 873 (1988).


Pace Law School Institute of International Commercial Law - Last updated May 17, 2006
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