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Reproduced with permission of 16 American Journal of Comparative Law (1968) 13-27

The Methods of Unification

René David [*]

I.

In our age, international unification of law is eminently desirable in a number of subjects. As international relations proliferate, it becomes essential to elaborate uniform views concerning the legal rules which will be applicable to these relations with due regard to their particular characteristics. Thus, one kind of agreement may concern the proper sphere of applicability of a particular national law; this is the unification of the rules of conflict of laws. On the other hand, other areas of the law may require that an agreement be reached establishing directly, in a given case, rules of substantive law; this is the unification of the rules of substantive law. As a matter of principle, there is no actual conflict between the two methods. For in practice each indeed seems to have a field of application where one is to be preferred to the other. In either case, however, the essential thing is to reach an understanding which will bring to an end the uncertainty, confusion and chaos characterizing the present situation.

To advocate international unification of law by no means serves to question the principle of the independence and sovereignty of states. It simply calls for consideration of their plurality in addition to the recognition of their existence. The function of public international law is to bring about the coexistence of states. However, even the relations between private individuals may be affected by international aspects and in this case they call for a particular kind of legal settlement. However, these rules cannot be determined by only one of the occasionally interested states. It is the function of national law to regulate matters of internal law. As a general rule, it is not its function to regulate matters with international characteristics; the reasonable, natural solution is that these matters be governed by agreement among the national jurisdictions having a substantial interest in these matters.

There is no disagreement with this approach in legal doctrine. The socialist countries profess adherence to it. Indeed, Marxist-Leninist doctrine readily professes that law is nothing but the political will of those who govern. This definition of law, however, applies only to the rules governing relations of internal law within each state. In the field of international legal relations it is clear that the will of the ruling class of one state cannot make the law. It is therefore desirable, if not indeed necessary, that states with common interests participate in the [page 13] conclusion of agreements. In this way, the will of those governing one state asserts its sovereignty only to impose or refuse to impose the state's power of enforcement and coercion within its territory.

From the standpoint of legal practice, some international unification of law bearing on the rules of conflict of laws or on rules of substantive law applicable to international legal relations [1] is thus desirable. This is universally recognized today, and legal doctrine presents no obstacle. Consequently, the problem presented by international unification of law is simply one of method, how to effectuate that unification.

Many sceptical or pessimistic scholars regard international unification of law as unobtainable. They view it as an illusion; it does not exist, nor will there ever be anything but national laws, established by the unilateral will of those who govern each state. Detached consideration of the prevailing situation does not justify this pessimism. To be sure, much remains to be done, and the present situation is far from satisfactory. Nevertheless, substantial changes have occurred, in fact as well as in attitudes, since the last century when legal nationalism had free rein. From our point of view the illusion is not the international unification of the law. On the contrary, it is the refusal to contemplate unification and the desire to preserve law as strictly an instrument of state power and thus as divided among the states; will this in a world in which international relations gain in importance and in number. Let jurists continue in their routine opposition to international unification of law; nevertheless, that unification will occur without and despite them, just as the ius gentium developed in Rome without the pontiffs, and as equity developed in England without the common-law lawyers. Today the problem is not whether international unification of law will be achieved; it is how it can be achieved.

II.

Our vision of the problem of international unification of law has been for a long time and still is obscured by prejudices: prejudices concerning the methods through which unification should be realized, prejudices relating to the very concept of international unification of private law.

Let us consider the latter problem first. The methods of unification obviously cannot be determined before knowing exactly what is to be understood by international unification of law.

For those concerned mainly with national law, and this is the immense majority of lawyers, the matter seems to be clear. The law, their national law, appears to them as a body of rules promulgated by [page 14] the legislator or deduced from case law. International unification of law is conceived of as the process of providing the same rules for the different countries so that the same solution applies everywhere, in France and Germany, in England and Poland, if a difficulty concerning a given relationship of international law happens to arise.

The comparatist has a more comprehensive and differentiated view of the international unification of law. For him, unifying rules of law is merely the last step in a much larger process. Indeed, as Roscoe Pound has pointed out, differences between legal systems result primarily from factors other than the diversity of the rules of law. What divides legal systems most deeply and at the same time makes it possible to group them in families is more than the diversity of the rules which they comprise; it is rather the difference in the concepts on which they rely, in the methods which their lawyers use, and in the standards of conduct to which they refer. Each legal system seeks to express a certain perception of the world and manifests a certain manner of conceiving justice and efficacy in social relationships. Each legal system puts into effect given concepts and is based on techniques peculiar to it; its laws are characterized by their own manner of formulation. and structure which responds to the psychology of those to whom the law applies and those who are charged with its application.

In this view of law, what is the import of the phrase "unification of law"? The task is neither exclusively nor perhaps essentially one of unifying the rules of law. The task of unification might possibly consist, without having the immediate appearance thereof, in harmonizing the different laws by effectuating an understanding about the significance of certain concepts, on certain modes of rule formulation, and on the recognition of authoritative sources.

Unification of law must not be confused with uniformization of the rules of law. The notion of unification of law can and must be conceived in a much more flexible way. International unification of law can be viewed from a variety of vantage points, and a variety of means can be employed to assure its continued progress. In these circumstances, it is inadvisable to adopt a rigid method, particularly if it should appear that such a method would shock and would raise practically insurmountable obstacles.

Various historical as well as modern examples illustrate the existence of both a theoretical jurisprudential and a practical interest in a type of unification which is not an immediate attempt to unify the rules of law.

The ius commune which was taught at the universities before the Napoleonic codification constitutes a first example. Under the cover of Roman law and canon law, the universities for centuries have taught the same law throughout Europe. But in no country was this law [page 15] applied in an integral fashion. In France it enjoyed authority only as raison écrite and its rules did not strictly bind the courts. In the Germanic Empire, where a reception of Roman law had taken place, that law was applied in principle, but numerous exceptions to it were created by regional or local customs, princely ordinances or municipal statutes. Nevertheless, the universities did accomplish a considerable degree of unification by providing a common education for all lawyers, instructing them in the same manner of reasoning in a framework of common categories and concepts. In this fashion, Frenchmen, Germans, Italians, Brazilians and Mexicans have learned to speak an identical language of law beyond their national idioms. After 150 years of legal nationalism, the community created among them still retains sufficient vitality to speak of it as one family of laws and thus to envisage the unification of rules of law in major areas among those countries which have received that tradition.

In the world of the common law, the United States offers a similar example. In matters not regulated by federal law and not changed by state legislation, the Restatement of the Law on the one hand, and university teaching on the other hand, show how, without any authoritative uniformization in legal rules, a feeling of solidarity and unity can be created. This unity, in turn, may result in the unification in positive law of those legal rules which have become commonly recognized.

To these two examples one can add in another area that of the Incoterms which were drafted by the International Chamber of Commerce. The Incoterms represent a useful accomplishment of unification by defining the meaning attached by merchants in different countries to certain commercial terms employed by them in contractual instruments. In still another area, one can furthermore point to the work of the Joint Bureaus for the Protection of Intellectual Property concerning a uniform international classification of products and services carrying marks of origin and trademarks and concerning the international classification of designs and models.

Too much emphasis has been placed by those concerned with the problem of international unification of law on the search for the unification of legal rules which could be accomplished by means of international conventions or model acts. However, for two reasons the results attained have often fallen far short of the goal. On the one hand, the value and possibilities of this law have been overestimated by supposing the law-maker to have the ability in any given case to provide rules of law which are made uniform by the expression of his will and which are understandable by lawyers of all nations. However, on the other hand the disinclination of the national legislator, the organ par excellence of national sovereignty, to join in solutions and drafts developed on the international level has been underestimated. [page 16]

The unification of the law does not suffer from such impediments and is not subject to the foregoing reservations if one strives more modestly to place it on a simple doctrinal level and seeks only to engage in the scientific work of defining the meaning of certain words, classifying legal rules, and fitting them into a uniform plan. This work is perhaps necessary if one wants to go further on the way to unification. But even in its own right, and despite its apparently limited scope, this work has utility of the first order for legal practice.

The experience to which we have referred bears witness of this, that in a given field there can exist a common legal science as well as a uniform terminology and uniform concepts. The community thus created will quickly cease to be of a merely formal nature and a tendency will inevitably manifest itself to bring about unification of the rules themselves. In the long run, the results reached in this way will possibly be more important than those brought about by artificial approximation which the legislator decrees without sufficient concern to have it prepared, accepted and put into effect by scholars and courts [doctrine et jurisprudence].

Agreement on the rules of conflict of laws is generally regarded as particularly desirable. As welcome as agreement would be, it will not be enough to satisfy the needs of legal practice in many cases. Notably in commercial matters, the multiplicity of national legal systems to which the hypothetical uniform conflicts rule refers, will create numerous difficulties for those who must apply the law. It will be clear in a given case that the law of the seller or the law of the flag is applicable. But where and how can the French or English judge or the Soviet arbitrator discover the law of Costa Rica, of Tanzania or of Liberia and how shall its provisions be established in court? It would considerably simplify the situation and facilitate the application of the most diverse foreign laws, and indeed enable the courts to cope with this task, if the world's legal systems would agree to conform the aspects of their law relating to international commerce to two, three, four or five models. Then the role of the legislator in every state would not be to adopt detailed rules of law following a self-conceived plan; instead, every state would content itself with determining and to making known the points at which its national law deviates from the model it has adopted in principle, or the terms of which it has made more precise or to which it has added for reasons of necessity or simple convenience. An international organization or regional organization could easily publish a maritime code or a code of industrial property, or even a code of obligations to which a whole group of countries would thus adhere. Such a publication would contain both the text of the basic model act and the national appendices supplementing or derogating from the model act in each state. [page 17] Unification of substantive rules would not be complete, yet the unification of the manner of presenting statutes would nevertheless constitute a great simplification which would certainly be appreciated in legal practice.

This suggestion takes into account several thoughts. First, national sensitivities require a very cautious approach. The chances of success of unification endeavors are maximized if it is possible to eliminate one of the major reasons why national authorities tend to regard unification with reservation. The suggested solution leaves each state entirely free at any time to prescribe the rules it considers desirable. Far from limiting a state's sovereignty, this approach provides assurance for each state that its national law will be more readily accessible abroad and that it will be better applied there whenever it is considered applicable. Is it not possible to accept the limitation resulting from the necessity to formulate laws within the framework accepted by common agreement in exchange for the practical advantages of this scheme? And let us recall and emphasize in this context that we are solely concerned with the regulation of international legal relations!

A second aspect which it appears useful to emphasize is the suggestion that the legal rules be formulated in accordance with a limited number of models. More or less consciously, legislators in various states have adopted certain models, the model of the codes of the European continent, the model of the Soviet codes or the model of the common-law countries. The call for the establishment of "bodies of model laws" within each family of law or for certain fields by agreement between them or between certain ones of them, indeed suggests only that a reality of contemporaneous legal orders be expressed more distinctly.

At the same time, however, the proposal calls for an entirely new view of international law. It is this third aspect which is and will be revolutionary. Up to now lawyers have treated the problem of international unification of law as if they were dealing with a relatively minor problem, as if the actual situation were wholly satisfactory, and as if all that is needed to adapt oneself to modern conditions is a hope for some retouching of details.

This approach to the problem must be rejected categorically. Today's world is no longer that of the last century when the only nations which counted were certain European nations, when each one of these nations considered itself totally independent, and when international legal relations constituted an occasional phenomenon to which lawyers did not ascribe great importance. Today the world is composed of a considerable number of nations, European and non-European, living together in manifest interdependence, and the proliferation of international legal relations, indeed their recognized necessity, no longer permits us to regard them as occasional and accidental phenomena. [page 18]

Under the old approach these relations were regulated by an inappropriate national law, freely determined by each national legislator in the discretionary exercise of his sovereignty. This method today appears as outmoded as transportation by caravan or by sailing ship. The primitive character of the old method for the regulation of international legal relations does not appear satisfactory for our age. The failing of the advocates of unification of law is neither their boldness nor the utopian character of their efforts; it is rather their excessive timidity and their hesitation to overcome routine. Politicians and lawyers must face their responsibilities squarely and resolutely. When one or several models for the regulation of certain types of international relations are proposed, it is not excessive or unreasonable to demand that they indicate which of the models has their preference, for what reasons they cannot accept or do not want to accept the proposed model and in the latter case to indicate in what respect they wish to derogate from the "droit commun." Unification of law by legislative means will fail to engender real progress unless the approach suggested here is adopted; the time for the methods formerly used has passed.

III.

Nevertheless, let us consider the methods used formerly, even though they do not suffice to satisfy the needs of our epoch. They have played a useful role and in a new framework can yet be utilized profitably in the future.

International unification of law has been approached by doctrine through two means, international conventions and model acts. At times states have bound themselves within certain limits to apply given. uniform rules to certain categories of relationships. At other times, the only resort was to persuasion that states would conform their law to a certain model without any international obligation.

One may ask what are the respective advantages and disadvantages of the two methods. Indeed, the basic difference between them is slight enough. In view of the reservations to which an international convention may be subject and of the problems for which it may not provide solutions, its difference from a simple model act is in fact frequently almost insignificant. The obligations imposed on states by such a convention are often very limited, while generous provision is generally made for termination or withdrawal. With regard to a convention's form, one can distinguish between traditional treaty-law provisions which impose obligations on the states and uniform provisions which are of more direct interest to private persons. The latter provisions are contained in a uniform act annexed to the international convention. Yet, as a result of the need to translate the uniform act into the national language, or because of national constitutional procedures, it is not the [page 19] convention's text itself or that of the uniform act annexed to the convention which constitutes the law, in fact or even in theory, applied by the judge in a number of countries. For this reason again the difference between international convention and model act is diminished.

The solution of annexing the text of a model act to an international convention is desirable compared with the insertion of uniform provisions into the convention itself as done not long ago and sometimes still done today. Countries which for constitutional or other reasons could not adopt or hesitated to adopt conventions now have the ability nevertheless to adopt the model act for their territory. And one can easily conceive of ways in which benefits can be conferred on these countries in every case which the convention had contemplated for the high contracting parties or for those adhering to the convention. To add a model act to the convention offers still another advantage; to prod states in some way to give serious consideration to the model act, while a model act not annexed to a convention is in danger of being forgotten in the archives of some ministry. The model acts which have had success in the Nordic countries or the United States (uniform state laws) , benefited from very special conditions existing in countries united by a federal bond or by a strong common tradition. Without these circumstances, the formula of the simple model act independent of an international convention has never been successful in the past, nor is it likely to be in the future.

Therefore whether international conventions or model acts are contemplated, it is important to emphasize that international unification of law can and must be characterized by flexibility. A convention imposing correlative obligations on states may be an open convention or it may be restricted to the relations between certain states as in the Hague conventions on international private law. Under varying conditions, reservations may be may not be authorized. Termination of the convention may be made harder or easier. There may be more or less strict provisions for the control of the conventions' application in the states. Provisions in a model act may be more or less detailed and precise. They may be restricted, for instance, to affording minimum protection for certain persons (workmen, authors, inventors).

A flexible approach, moreover, makes it possible to contemplate the creation of a whole network of conventions with regard to a given subject matter, those of a less demanding nature on a world-wide basis, and other more exacting conventions on a regional level or between two or more specific states. We should not limit ourselves for the sake of principle to the often illusory idea of a world law. The peaceful coexistence of states can take diverse forms from simple tolerance to highly advanced cooperation that at times may even lead to the establishment of supranational unions or communities. The same is true in the area of private [page 20] international law. Economic or other relations existing among states, their traditions, their civilization and their geographic position justify a state to conceive of or to fashion its relations differently with other given states. A cosmopolitanism which would deny differences among states would be the worst enemy of the progress of unification of law.

International conventions for the unification of law have recently provoked ardent discussion concerning the proper field of application for uniform law. Is it only appropriate, for instance, to provide rules for legal relations that in accordance with conflict of laws theory would "normally" be governed by the law of one of the signatory countries? Or should uniform rules be fashioned to apply to "international legal relations" without regard to whether or not these relations display elements which connect them to one of the signatory countries?

The Hague Convention of 1964 which establishes a Uniform Law for the International Sale of Goods has been criticized vigorously for having adopted the latter point of view. I believe, however, that the adoption of this approach constitutes a considerable progress. The Hague uniform law was formulated through collaboration by numerous states belonging to different families of law. The convention adopting it has been signed by states as different as those of the European Economic Community, the United Kingdom and Yugoslavia. The arguments against Article 2 of the Hague uniform law which excludes the application of conflict rules would have force only if there existed a common understanding of these conflict rules among the various states. The states which did not accept the invitation of the government of The Netherlands or did not find it necessary to adhere to the 1964 Convention on the uniform law, have little reason to object to the extension given the scope of application of that uniform law, since none of them chose to adhere either to the 1955 Hague Convention or to any other international convention relating to the conflict of laws in the area of international sale of goods. Under present circumstances, Article 2 of the Uniform Law offers a definite practical advantage. The courts of a country where the 1964 Convention is in force need only know the law applicable to sales for two types of cases, leaving aside exceptional cases, the national law applying to non-international sales, and the law established by the Uniform Law for international sales. I think that this simplification is worth the sacrifice of a conflict of laws theory characterized too often by its incertitude and its confusion in sales matters.

The approach adopted in The Hague in 1964, which is not new,[2] goes in the direction of what seems to be one of the fundamental tasks of this century's lawyers, to look for the reconstitution of a ius commune [page 21] in international legal relations in reaction to the excessive nationalization which perverted and ruined international law in the nineteenth century. Furthermore, the new approach deserves approval all the more because there is little hope that international law will be reconstituted in its classic form and manner and with a result that would satisfy the needs of today's world. It is enough to recall the generally very limited success of international conventions and model acts to corroborate this conclusion.

To be sure, several uniform laws have been adopted widely, the Warsaw Convention on air law, certain conventions on maritime law or the law of intellectual property and the American Uniform Commercial Code. But a great number of model acts and international conventions have in fact remained academic or have been adopted only on a strictly regional basis. In an area as technical and as patently calling for unification of law as that of conflict of laws, it is distressing to see how small a number of states have ratified the timid conventions drafted under the auspices of the Hague Conference on Private International Law. On the other hand, the apparent success of various conventions should not lead to illusions; one may ask how many French statutes have had to be modified in order to put into effect 73 conventions concluded under the auspices of the International Labor Organization and which France takes pride in having ratified, thereby taking first place in international-mindedness.

IV.

International conventions and model acts are the techniques with which lawyers have attempted to reconstruct a true international private law for our age. Some progress has been made in this fashion and should not be underestimated; however, it has not fulfilled the needs of modern international commerce and has not been satisfactory. International commerce has, therefore, resorted to other methods to cope with the inconveniences resulting from the decline of international law. Lawyers took the position that businessmen should be governed by national laws, but they could not agree on the applicable national law in a special case; national laws, furthermore, seldom took into account the special circumstances of international commerce. Businessmen reacted by fashioning their relations in a way that would bypass national law; they defined the nature of their obligations in standard-form contracts and entrusted the settlement of their disputes to arbitration.

It is true that standard form contracts are theoretically governed by national law. However, in the great majority of cases, they are able to provide their own law through detailed statement of applicable rules. Their utilization of the principle of private autonomy, which is very generally recognized in international commercial matters, makes it [page 22] frequently idle to question by what particular national law the contract is governed. In legal practice, uniform treatment will therefore be accorded with respect to the legal result contemplated.

What if a dispute does arise? Resort to national law will in the main still be avoided, for the parties will have provided in their contract that all disputes arising between them shall be settled by arbitration. Do arbitrators decide like courts by applying national law? While lawyers may cling to that idea, in fact it does not seem to be true. In a number of countries, the arbitration clause helps national law save face; elsewhere an analogous result is reached through a reference to the usage of international commerce. Nor should we forget, moreover, the uncertainties of conflict of laws; they permit the arbitrator some latitude in the choice of the national law he wishes to apply. In addition, a number of countries to which the conflicts rule may refer the arbitrator, do not have appropriate legal rules that could apply to matters of international commerce. This may be the case in developing countries. Even more clearly it may be the case in socialist countries where the provisions governing internal commerce are usually inappropriate for matters of international commerce because they operate in the setting of a planned economy, and hence are founded on principles not as equally applicable in the case of a foreign contracting party as in the case of internal commercial organisms. The Socialist Republic of Czechoslovakia clearly recognized this by promulgating a code of international commerce in 1963 which is entirely different from both the economic code governing relations among socialist organizations and the civil code governing relations of citizens among themselves or with socialist organizations. The code of international commerce is applicable to cases in which a conflicts rule provides for the application of Czechoslovakian law to an international commercial matter.

The question arises whether standard-form contracts and international commercial arbitration should be considered factors promoting the international unification of law. Do they result in the creation of a droit corporatif, a new lex mercatoria which engenders a uniform law of international commerce? Or do they indeed represent only a factual phenomenon and process which take place in the framework of the various national legal systems? Analysis of this question, however, appears futile because scarcely more than terminology is involved; legal theorists do not seem ready to agree on the same elements for the proper definition of "law." As a matter of substance, however, it should be noted that through the use of standard-form contracts and arbitration, international commerce seeks to provide and does provide a framework for international contracts which is autonomous from national law to a very high degree. This system has much in common with that which at another time in history led to the establishment of a commercial law, [page 23] the ius gentium which was autonomous with reference to the ius civile of the territorial customs.

The autonomy of droit corporatif as established by international commerce in our time is not complete, and one should hesitate for several reasons to speak presently of a new lex mercatoria as some have done. Standard-form contracts continue to be embedded in national law, at least according to the generally accepted theory. Arbitration awards are published only exceptionally, and the exercise of arbitral jurisdiction has not been freed entirely from the control of national legal systems, as witnessed by the efforts to obtain the agreement of various states for the recognition and enforcement of arbitration awards. Lawyers must pay attention to and heed these developments. They must revise their conceptions and not perpetuate the situation of intolerable anarchy into which society and international law have fallen as a result of these conceptions, or they will soon find themselves preaching in the desert; they will expound fossilized theories while international commerce will have found the solution to its problems elsewhere. Their only consolation will be to tell themselves that the new development does not partake of the nature of law anyhow.

V.

Businessmen with the help of lawyers who have overcome last-century doctrines, have created mechanisms designed to create a new uniform international law or, if one prefers, to avoid application of the various outdated national rules of international law. National legislators, however, have sat by either because they are not conscious of the danger or are incapable of reasserting themselves. Inactivity is easier for legislators than building new international private law by concluding international conventions or recognizing the value of model acts. Is there not some way, however, for lawyers to recreate order and to prevent the decline of international law as well as its replacement by arbitration techniques?

What nineteenth-century legal theory has undone, modern theory can in large measure revive. It was not national legislators or state authorities who brought about the nationalization of law. Essentially this was the work of legal theorists. It was legal theory in the several countries that without being compelled to do so by law lost the sense of universalism and repudiated the idea of a droit commun in order to immerse itself in the study of codes and of national jurisprudence. Codification was never based on the idea that law is essentially a national phenomenon and that the national legislator has full powers to regulate international legal relations. Codification proceeded rather on the presupposition that there exists a natural law of universal scope. The authors of the codes merely intended to give lawyers a new base for the research of [page 24] solutions corresponding to universal rationality. The nationalization of law was only an indirect consequence of codification which its initiators and authors had not intended. The new approach contains elements of the teachings of such different men as Marx and Austin, although it should be observed that neither of them contemplated international legal relations when they spoke of the identity of state and law or traced the concept of law back to the idea of coercion. Contemporary Marxist-Leninist doctrine nevertheless clearly established the distinction between internal and international relations, and the work of Roscoe Pound has also put matters into the right perspective again by showing that the notion of law also comprises elements other than rules of law which are the object of state coercion.

On the other hand, to continue with that specific example, it is clear that the various codes generally contemplated only the regulation of internal legal relations. Their provisions have been applied to international legal relations only by analogy, except in some rare instances in which the codifiers expressly addressed themselves to these relations.

This historical fact presents legal theorists and the courts in the various countries with the opportunity to question within the limits of legal analysis whether a rule of law stated in general terms should not be restricted in its application to cases involving relations of nationals. For international legal relations the code rules are of value only imperio rationis, that is, to the degree to which their provisions appear just.

Apparently this approach has been adopted by the arbitrators of the chambers of foreign commerce in several socialist countries, with the exception of tile special case of Czechoslovakia. Thus, the fact that the Soviet and Hungarian codes are designed to govern only internal commercial relations has not been overlooked by the arbitrators. The situation is less clear in France and in other countries where the economy has not been collectivized and where, therefore, no such structural opposition exists between international and internal commerce. Nonetheless, courts in France and in other countries have not hesitated to avoid the application of a statutory or code provision in certain typical cases by asserting that despite its general terms it was not enacted for the purpose of governing international legal relations. Examples are the prohibition of the gold clause and the provision prohibiting the state or state agencies to subject themselves to arbitration; the French Cour de Cassation has refused to apply these rules in cases of international contracts, although it was uncontestable that French law was to be applied to these contracts.

If one accepts this mode of analysis, the conclusion is also clear that national law rarely contains provisions applicable to international legal relations. The will of the legislator, behind which refuge is willingly taken to justify the nationalization of law, is but a myth. With rare [page 25] exceptions, legislators in all countries have left it to legal theory and to the courts to deal with international legal relations in accordance with justice.

Legal theory and courts have not been up to this task. They found it easier to extend indiscriminately to international legal relations a regulation which was not tailored for them and which at times operated inadequately when so applied.

Our task is clear. In view of the special nature of international legal relations, it is necessary to devise appropriate rules for their use. Legislators in each country can of course still adopt specific provisions which ought to apply and thereby bind the courts. But this possibility need not disturb us. Intervention by legislatures will remain exceptional, as it has been rare in the past. On the contrary, state authorities will more often look to cooperation with one another in order to find uniform rules which they will then adopt for their courts to follow; they will not seek to regulate international relations unilaterally. In the absence of specific legislative commands, judges and lawyers in the different countries must search together, as was once done in the universities with respect to the ius commune, for solutions which appear best to serve the ends of justice and the development of international commerce. At the beginning of this century, E. Lambert saw in this task the very function of the study of comparative law.[3] After the long interruption occasioned by the pessimism engendered by two atrocious world wars, the generous universalism of the year 1900 must be revived if we wish to create the harmony that is desirable in a world which henceforth regards itself as one.

VI.

International unification of law is complex. States differ from one another, conceptions of law and of legal techniques diverge, relations among men vary in nature, and like treatment is not possible for the diverse branches of law. Unification of law should not be regarded as a simple task that can be accomplished conveniently with the help of some theorist's prescription. This endeavor is political in nature, and must therefore be approached in a spirit of refinement and conciliation. The temptation must be resisted to employ general formulas; such a method may be appropriate in one case but will only lead to disappointment in another. In one case, it may be appropriate to strive for the elaboration of a world law; in others it may be wiser not to cling to that idea but merely to reduce instead the variety of legal orders on a regional or other level. In one subject matter the goal may be to unify substantive rules of law; in another one may have to be content with agreement on the applicable conflicts rule. At times [page 26] detailed rules may be established; at other times one is content with agreement on certain principles, leaving it to each participant to develop means for their implementation to the extent deemed appropriate and according to his own legal techniques. These devices are not contradictory; in fact, they supplement each other, and the possible should not be sacrificed in pursuit of the absolute.

The same is true of the methods of unification. Here, too, one must be prepared to be flexible. In the past, the task of bringing about unification was left too readily to the legislator. This was a mistake. By vocation, the legislator is the defender of national interests and particularism. It is to ask much of him indeed not to oppose unification without sound reason. But he cannot be expected to be the instrument par excellence of unification.

International conventions and model acts have to play a role in this matter. Hopefully that role will develop as soon as state authorities become conscious of their double role as defenders of national interests and as members of a society of nations, in accordance with the dédoublement fonctionnel that Georges Scelle has demanded of states. However, one should not expect miracles. National authorities will not adopt the new attitude demanded of them unless pushed by the pressure of public opinion, which it is the lawyers' job to articulate and form. Unification of law will not be the work of national legislators who suddenly change position and consider themselves agencies and institutions of an international society. It would be optimistic to hope for such a metamorphosis from one day to the next. The construction of an international order in the field of private law as in public law is a long-range endeavor, one of collective education requiring the efforts and participation of all willing people. It is up to the more detached legal science to fight in this matter. My objective in this paper is to show that in our day the task of legal science is far from completed and to suggest certain ways through which progress could be made. The really important thing is to realize that the world has changed, that the methods utilized a hundred years ago are now outdated, and that a certain degree of international unification of law is necessary to put an end to the chaotic situation in which international legal relations are found today. Once that situation and the goal toward which we should aim are understood, the only remaining difficulty is to choose the proper method to reach the goal. Lawyers must be awakened to the conscience of the new world and must be instilled with an international spirit which has lain dormant during a century of retreat into national law. In this lies the task of comparative law. The road will sometimes be hard. But has it become necessary to have confidence in the outcome in order to undertake, or to anticipate success in order to persevere? We can more and more be legitimately hopeful; if we desire, more than negligible results are within our reach. [page 27]


FOOTNOTES

* René David is Professor of Law, Faculté de Droit de Paris.

1. This discussion docs not extend to the rather different problems which international unification of law raises for non-international law.

2. The 1958 New York Convention thus regulates the enforcement, in all countries in which it is in force, of all arbitration awards rendered "abroad" without making a distinction in principle on the basis whether such awards were rendered within the territory, or between citizens, of a country party to the Convention.

3. Lambert, LA FONCTION DU DROIT CIVIL COMPARÉ: ÉTUDE DE DROIT COMMUN LÉGISLATIF (1903).


Pace Law School Institute of International Commercial Law - Last updated December 15, 2005
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