John Honnold -- The United Nations Commission on International Trade Law... Go to Database Directory || Go to Bibliography || Go to CISG Case Search Form
Reproduced with permission from 27 American Journal of Comparative Law (1979) 201-211

The United Nations Commission on International Trade Law:
Mission and Methods

John Honnold

INTRODUCTION

A decade has passed since the United Nations Commission on International Trade Law (UNCITRAL) met for the first time to consider ways to respond to its mandate to promote "the progressive harmonization and unification of the law of international trade."[1] As time for international law-making is customarily reckoned, a decade is but a moment; nevertheless, UNCITRAL has completed and unanimously approved uniform rules for some of the most important aspects of international trade. UNCITRAL's Arbitration Rules are now in use; a Convention on Carriage of Goods by Sea, after overwhelming approval in March 1978 by a diplomatic conference, is in the course of ratification; uniform law for the international sale of goods, unanimously approved by the Commission in June 1978, has been referred by the U.N. General Assembly to a 1980 diplomatic conference; uniform law on international negotiable instruments is in a late stage of preparation.

This Symposium subjects this rapidly developing body of law to intensive review and critique; the contributors are scholars who, as national representatives or as members of the U.N. Secretariat, participated intimately in the law-making process. This relationship with the legislation has not however dulled the critical faculties of the authors, who responded vigorously to the suggestion that they deal with aspects of the rules that presented significant issues of comparative law or problems of international lawmaking. Indeed, some of the articles are aimed at last-minute reversal of sharply contested issues.

The preparation of uniform law for international trade is comparative law in action -- in its most fascinating and productive [page 201] dimensions. Which approach has proved its worth in practice? Can ingredients of differing legal traditions and commercial practice, in happy cohabitation, engender a new legal creation that is clearer and fairer? As the participants in this legislative process explained to each other the merits and demerits of their system's solutions to concrete legal problems, they provided each other with an extended seminar in comparative commercial law. The richness of the legislators' backgrounds is indicated by this Symposium, which includes contributors from eleven national legal systems.[2]

A separate Part of the Symposium is devoted to each of the four major fields where uniform rules are ripe for review: The International Sale of Goods (Part II); The Carriage of Goods by Sea (Part III); International Commercial Arbitration (Part IV); International Negotiable Instruments (Part V). Each Part opens with a sketch of the law-making process that led to the new law and then turns to intensive studies of challenging aspects of its provisions.

Readers who are not familiar with the Commission's work may need further background for these intensive studies. Consequently, this General Introduction will sketch the contours of the Commission's work product and will describe briefly the Commission's working methods.

FOUR FIELDS FOR UNIFICATION

International Sales

The world's exchange of goods, running at about a trillion dollars a year,[3] still lacks workable answers to the most basic questions: May offers to buy or sell be freely revoked prior to acceptance? If so, at what point does acceptance occur in international dealings? To what extent is the seller responsible for latent defects in the goods? When will difficulties -- strikes, export or import controls, foreign exchange barriers -- provide an excuse for delay or non-performance? Which party bears the risk of loss before shipment and during transit? What legal remedies are available for breach?

Work to unify the basic rules for international sales, instituted in Europe in the 1930s, led in 1964 to international conventions establishing a Uniform Law for International Sales (ULIS), and a Uniform Law on the Formation of Contracts for International Sales [page 202] (ULF).[4] For reasons we shall explore later, UNCITRAL found that ULIS and ULF needed substantial revision before they could achieve world-wide acceptance. This was done. On 16 June 1978 the Commission unanimously approved a Draft Convention on Contacts for the International Sale of Goods (embracing both ULIS and ULF), and on 16 December 1978 the General Assembly called a diplomatic conference to finalize the Convention. Studies addressed to significant aspects of the Draft Convention comprise Part II of this Symposium.

Space limitations have made it impossible to present specialized articles dealing with UNCITRAL's first piece in a mosaic of in national sales law: rules on the limitation period for legal actions by sellers and buyers. Although it would be difficult to find an area of more profound disharmony between the outlook of the Common law and Civil law worlds, the Commission, after three intense sessions of a Working Group, unanimously approved a Draft Convention in 1972,[5] and in June 1974 a diplomatic conference of 66 States adopted the U.N. Convention on the Limitation Period in the International Sale of Goods.[6]

A full and generally favorable report on this Limitation Convention by the U.S. representative to the diplomatic conference has already appeared in this Journal, and close attention has been given in learned journals elsewhere.[7] In addition, a thorough commentary on the Convention has recently been issued by the U.N. Secretariat.[8] [page 203] The Limitation Convention is intimately linked with the pending Draft Convention on Contracts for the International Sale of Goods which, as we have seen, will be submitted next year to a diplomatic conference. After that phase, it seems likely that the Limitation Convention will come into force and play a useful role in solving vexing and litigious problems that arise in international sales law.[9]

Shipping

For most countries, international trade depends primarily on carriage by sea; ocean carriage of cargo in 1975 was estimated at over 3 billion tons; 246 million tons were loaded in the United States.[10]

Ocean carriage no longer depends on favoring winds or faces the hazards of uncharted harbors, but issues reminiscent of an earlier day persist. The ship strands and cargo is lost or damaged: Is the ocean carrier responsible or (in the case of expenses to float the ship) has the ship a claim for contribution from the cargo? The shipment is delayed; cargo on the dock is subject to pilferage or damage from rain. In these situations has the carrier any responsibility? Cargo is assembled in massive containers or in LASH barges that are carried on the ship: How does one compute limits of liability for "packages" and "customary freight units"? Clauses in the bill of lading provide that any claim against the carrier may be brought only in the courts of the carrier's principal place of business: Will the courts of the place of loading or discharge dismiss the claim? For these and many other questions the answers are uncertain or are startling in light of modern transportation practices and needs.

Here the problem is not the lack of an international convention; most of the world's ocean cargo is subject to the "Hague Rules" [page 204] embodied in the 1924 International Convention for the Unification of Certain Rules relating to Bills of Lading.[11] The need for current work results from the radical changes in the character of ocean carriage that have taken place since the early days -- decades prior to l924 -- when the basic rules were formulated. There have also been political changes. When the prevailing rules were forged at the turn of the century, maritime power generated overwhelming international political power that led to rules favoring carriers; with the establishment of wider systems of international representation, consideration must also be given to voices representing the cargo.[12]

The result was a Draft Convention completed by UNC1TRAL in 1976 and submitted to a diplomatic conference at Hamburg; in March 1978 the conference approved the U.N. Convention on the Carriage of Goods by Sea (or "Hamburg Rules") by a vote of 67 States in favor, none opposed and 4 abstentions.[l3] In spite of this overwhelming vote, the interests at stake are substantial and the representatives of ocean carriers are particularly well organized and vocal; a lively debate over ratification has already begun.[14] Studies addressed to the most significant aspects of the new Convention comprise Part III of this Symposium.

Arbitration

International businesses have reason to be concerned about the ability of many national courts to deal competently and fairly with the special rules and practices of international trade. The U.S. Constitution went so far as to provide for a separate federal judiciary to assure national implementation of federal law. International trade lacks comparable institutions to implement international law and [page 205] practice, but the parties can create tribunals with an international outlook by agreements to submit their disputes to arbitration.

What structural arrangements are needed to organize such ad hoc tribunals? What procedures will promote speed and fairness and will enhance international recognition and enforcement of the award? These are the basic functions of the UNCITRAL Arbitration Rules, unanimously adopted in 1976 by the Commission,[15] and promptly recommended for use by the U.N. General Assembly.[l6]

Since such rules are put into force by the agreement of the parties, there was no need to submit the rules to a diplomatic conference and await the process of ratification. As will be seen in Part IV of the Symposium, the Rules are now in use; the special arrangements for their use in USA-USSR commercial relations are described at IV-C, infra.

Negotiable Instruments for International Payments

The most common method to assure payment for goods channels the payment by means of a draft -- in many countries called a bill of exchange. The seller will draw a draft on the buyer, and deliver this draft and accompanying documents (such as a bill of lading) to his bank for transmission to the buyer or to a bank that has issued a letter of credit engaging to pay the draft.[17] On its way to the buyer the draft may pass through many hands in two or more countries. What rules govern the holder's right of recourse against prior holders when the draft is dishonored? When a draft has been wrongfully acquired and renegotiated, what rules determine who is the owner?

Almost a half-century ago countries of the Civil law prepared and widely adopted two important conventions: The 1930 Geneva Convention providing a Uniform Law for Bills of Exchange and Promissory Notes and the 1931 Geneva Convention providing a Uniform Law for Cheques.[l8] However, these Conventions did not serve as a bridge between the Civil law and Common law systems, which have fundamentally different approaches to basic issues such as the effectiveness of a transfer under a forged indorsement.[19] [page 206]

With the enthusiastic support of international banking organizations, a Draft Uniform Law on International Bills of Exchange and International Promissory Notes was prepared by the Secretariat, and is now in the course of a second reading by an UNCITRAL Working Group.[20] This law-making process and some of the specific issues that have arisen in developing new international rules are explored in Part V.

THE LEGISLATIVE BODY: WORKING METHODS

UNCITRAL's record of accomplishment invites attention to the character of this legislative body and to its working methods.

Membership

The charter establishing UNCTI'RAL embodied two essential points: its size must be limited, but its membership must be widely representative. Membership is limited to 36 States; that membership is allocated among the regions of the world by a formula specified in the Commission's charter.[21]

The success of the Commission and the importance of its work have led to keen competition to obtain and retain membership. The General Assembly elects the members, but in practice each region, by caucus, puts forth nominees which the other regions accept. This caucus procedure produces more refined balances of representation than are required under the Commission's charter. For example, the nine nominees from the region awkwardly called "Western Europe and Other" (the industrial West) have included one (and only one) Scandinavian State, and one (and only one) Commonwealth country other than the United Kingdom.[22] Africa presents particularly [page 207] complex problems of internal balance, for the caucus has borne in mind the need to distribute the nine seats between northern and sub-Saharan countries, and also between countries of Common law and Civil law background.[23]

The size limitation has important consequences in addition to efficiency. The regional nomination process tends to select influential States -- States that have the resources to send competent experts in international commercial law. In addition, the allocation of a limited number of seats to each region has led to a rough equivalence between developing and industrialized States. In short, the membership of UNCITRAL represents the world's regions, and also its legal and economic systems and its balance of affluence and need.

What role has been played by the Socialist countries of eastern Europe? From the outset, the countries of this region have been strong supporters of UNCITRAL's work. Much of socialist law is concerned with carrying out an economic plan and thus is ill-suited to international trade, which inevitably reflects a market economy; uniform law for international trade (with an official version in the Russian language) thus meets a very special need. Yet it must be quickly added that in some areas it is difficult to distinguish the outlook of Socialist representatives from that of others. For example, in considering heavier responsibility for ocean carriers, the views of Soviet and Polish representatives were more akin to the views of Japan and the Netherlands than to Canada and Australia. On the issue whether a sales contract may be binding without a writing, the Soviet position resembles the outlook of the management of a large American company. In the work on negotiable instruments, Socialist and Capitalist banking lawyers seemed virtually fungible.[24]

Working Methods

As is true of other legislative bodies, specific proposals are hammered into shape by constituent bodies. UNCITRAL's Working Groups, ranging from 7 to 21, are cross-sections of the Commission's membership and thus preserve its world-wide representative character even in microcosm.[25] [page 208]

Patterns for preparation of the initial draft have varied. For the work on Sales and Shipping, Working Groups took part in the initial formulation of the legislative texts; for Negotiable Instruments a Working Group was established only after the Secretariat had prepared a draft in consultation with a Study Group composed of representatives of international banking organizations. For the Arbitration Rules, no working group was established; instead, the Secretariat, with the expert advice of a consultant, developed the rules in collaboration with a Consultative Group which (like the Study Group for Negotiable Instruments) was composed of representatives of specialized international organizations.[26]

The Secretariat

The role of the Secretariat has been determined by a few basic facts of time and space. The Commission meets once a year; during two to four weeks it considers the progress of over-all programs in several complex and diverse legal fields. In the Working Groups, national representatives come together from all parts of the globe from diverse legal and linguistic backgrounds, for annual sessions of two or three weeks. All of the representatives have primary, full-time responsibilities in their Universities or Ministries. For these reasons, progress at the legislative sessions has depended on preparatory materials provided by the Secretariat: studies analyzing the divergences among the existing legal rules; reports on commercial practices that assist in making a choice among existing rules or in developing a new approach; draft statutory texts, formulated at crucial spots with clearly-labelled alternatives to facilitate debate and decision with a minimum of confusion or misunderstanding.[27] [page 209] The development of a strong role for the U.N. Secretariat could touch political nerves of considerable sensitivity. However, at an early stage it was recognized that successful work in this technical field depended on strong help from the Secretariat; the general desire for UNCITRAL's success muted this and other divisive political issues.[28]

Decision-making

The reader may have noted statements that complex legislative texts had been adopted unanimously. Indeed, UNCITRAL has yet to take a formal vote; the procedures bear a striking resemblance to those of a Quaker meeting.[29]

Of course, a group of lawyers (particularly a group that includes law professors) cannot produce a legal text without intense debate, nor will all members of the group be fully satisfied with the outcome. The central point is that the representatives want the Commission to succeed, and are willing to support the group's best efforts to accommodate conflicting views.

How can decisions be reached without voting? Effective forward motion depends on the skill of the Chairman. When he senses that the debate has produced the basis for consensus, he will invite the group to accept that result. When differences persist, he may appoint a small working party reflecting the diverse points of view; this group will meet at lunch or in the evening to find an acceptable solution. Often this small working party (with the reluctant acquiescence of some) will produce a clean-cut decision; sometimes it can find agreement only through a complex formula involving a hybrid (but not necessarily sterile) mating of diverse approaches.[30] By such processes it is possible for the Chairman to announce, for inclusion in the brief report of the meeting, that a consensus has been [page 210] reached.[31] Often no objection is voiced; sometimes a delegation will ask that the records show that it "reserves its position" on the point. Such "reservations" are sometimes designed to avoid embarrassment (and implications of bad faith or back-sliding) if the delegate renews his argument at a later stage of the Commission's proceedings; sometimes one senses that the delegate is making it clear to his Government that he was true to his instructions and "fought the good fight."[32]

Of course, there are times of frustration and impasse, but UNCITRAL proceedings, on the whole, compare favorably with faculty meetings, where a relatively homogeneous group wrestles with issues that usually are not intrinsically more complex than framing uniform law for world trade. And lawyers who proclaim the importance of rules (especially procedures), may well ponder UNCITRAL's success with relaxed and informal working methods.[33]

With this introduction to UNCITRAL's program and working methods, we turn to a more detailed examination of UNClTRAL's work product in four fields. [page 211]


FOOTNOTES

1. General Assembly Resolution 2205 (XXI) of 17 December 1966, I Yearbook 65. The Commission's first session convened in January 1968 at U.N. headquarters, N.Y. Id. 71-86. The Commission has held annual sessions of two to four weeks, alternating between New York and the European headquarters of the U.N. in Geneva. Full references to the UNCITRAL Yearbook and other UNCITRAL documents are given in the Note "UNCITRAL Documents: Research Sources, Style, Citation," Part I-C infra.

2. The contributors' national legal backgrounds include the United States, United Kingdom, Australia, Japan, Hungary, Sri Lanka, Norway, Sweden, Netherlands, Soviet Union, and the Democratic Republic of Germany. The backgrounds are about equally divided between the Common law and Civil law tradition.

3. Statistical Abstract of the United States (1977) Table No. 1523, p. 909 reports world imports for 1975 (in million dollars) at 903,200 and exports at 871,300. Comparable figures for the United States were 102,984 and 106,157.

4. The 1964 Hague Conventions on international sales are set forth in I U.N. Register of Trade Law Texts at 39 (ULIS) and 64 (ULF). Full citations to these Registers appear in the Note on UNCITRAL Documents, Part I-C infra.

5. UNCITRAL, Report on Fifth Session (1972) paras. 13-21, III Yearbook 11-16. The Note on UNCITRAL Documents, Part I-C infra, gives document numbers and Yearbook references for the reports of the commission's various working groups; a table for the Working Group on Time Limits and Limitations (Prescriptions) appears in Part I-C, infra. Credit for the remarkably rapid pace of the Working Group must be given to its indefatigable and relentless Chairman, Mr. Stein Rognlien of Norway.

6. The Final Act of the Conference and the text of the Convention are reproduced in V Yearbook 209-215 and 23 Am. J. Comp. L. 356 (1975). The full proceedings of the Conference are given in a separate volume: Official Records of the United Nations Conference on Prescription (Limitation) in the International Sale of Goods (U.N. Pub. E. 74, V.8) ("Official Records").

7. Smit, "The Convention on the Limitation Period in the International Sale of Goods: UNCITRAL's First Born," 23 Am. J. Comp. L. 337 (1975). Sono, "Unification of Limitation Period in the International Sale of Goods," 35 La. L. Rev. 1127 (1975); Sumulong, "International Trade Law and the U.N. Convention on the Limitation Period in the International Sale of Goods," 50 Phil. L. J. 318 (1975); Landfermann, "Das UNCITRAL - - Übereinkommen über die Verjährung beim internationalen Warenkauf," 39 Rabels Z 253 (1975); Giardina, "La Prescrizione in Tema de Vendite Internationali," 1975 Riv. Dir. Int. Pr. & Proc. 465. References to additional articles appear in the bibliographies of the UNCITRAL Yearbooks and in the Bibliography on Sales, Part II-I infra.

8. A/CONF.63/17. Prof. Kazuaki Sono, Hokkaido University, Japan was Consultant to the Secretariat in the preparation of this Commentary. A Commentary on the Draft Convention as approved by UNCITRAL was placed before the diplomatic conference. A/CONF.63/5, Official Records, supra n. 6 at 10, III Yearbook 115. Prof. Sono, a Legal Officer in the U.N. International Trade Law Branch while the Limitation Convention was formulated, had special responsibilities with respect to this topic which he discharged with devotion and ability.

9. The wide ranges in national limitation periods and divergences in their application are discussed in the Commentary, n. 8 supra. The most intractible problems result from the fact that most Civil law systems characterize the issue (termed "prescription") as substantive and apply the proper law of the contract while Common law jurisdictions often characterize the problem as procedural and, to some extent, apply the law of the forum. See the Commentary to art. 3. The Limitation Convention comes into force on ratification or accession by 10 States, art. 44.

In response to UNCITRAL's request, the General Assembly, by its resolution of 16 December 1978, convoking a diplomatic conference on the basic Sales convention (n.13 infra), authorized the conference to prepare a protocol to the Limitation Convention conforming its provisions on scope to those of the forthcoming Convention on Contracts for the International Sale of Goods.

10. The date and estimates on ocean shipping are derived from: Statistical Abstract of the United States (1977) Table No. 1523, p. 909.

11. II U.N. Register of Trade Law Texts 130; a 1968 Protocol to the 1924 Convention is set forth, id. at 180. The Registers include data on ratifications and accessions. For the full citations to these Registers see the Note on UNCITRAL Documents, Part I-C infra.

12. The current balance of interest is far from the stereotype of impoverished developing countries versus the industrialized West. In recent international deliberations, vigorous exponents of the needs of cargo have included Canada, Australia and, on most issues, United States; strong maritime countries that have supported basic changes in the prevailing carrier rules include Norway, France and the Federal Republic of Germany.

13. The legislative history of the Convention is summarized in Mr. Basnayake's introduction to Part II of this Symposium. The text of the 1978 Convention is set forth at II-H. A table giving documentary references, with Yearbook citations to the reports of the UNCITRAL Working Group on International Shipping Legislation, appears in the Note on UNCITRAL Documents, Part I-C infra.

14. The current literature includes: Moore, "The Hamburg Rules," 10 J. Mar. L.1 (1978); Tetley, "Per Package Limitation and Containers under the Hague Rules, Visby and UNCITRAL," 4 Dalhousie L.J. 685 (1978); Tetley, "Canadian Comments on the Proposed UNCITRAL Rules," 9 J. Mar. L. 251 (1978); Wilner, "Revised Hague Rules on Bills of Lading," 32 Arb. J. 35 (1977). See also the Bibliography, Part III-G infra.

15. UNCITRAL, Report on Ninth Session (1976) paras. 46-57, VII Yearbook 20-27. The process of preparing the rules is described in Mr. John Dietz's Introduction to Part IV of the Symposium. The Rules are set forth at IV-E.

16. General Assembly Resolution 31/98 of 15 December 1976, VIII Yearbook 7.

17. The promise in the letter of credit is normally conditioned on the presention of specified documents together with the draft. A Prototype for such an international transaction is set forth in Honnold, Sales and Sales Financing 283-310 (4th ed. 1976).

18. I U.N. Register of Trade Law Texts 154, 192.

19. Companion Geneva conventions addressed to problems of conflict of laws have also been widely adopted, but not by Common law countries. I U.N. Register of Trade Law Texts 181 (bills of exchange and promissory notes), 214 (cheques).

20. The Note on UNCITRAL Documents, Part I-C infra, includes a table, with Yearbook citations, of the reports of the Working Group on International Negotiable Instruments and related materials including drafts and the commentary. The first revision of the Draft Uniform Law appears in A/CN.9/WG.IV/WP.6, and Addenda 1 and 2 (May-July 1977).

21. The basic charter for UNCITRAL is General Assembly Resolution 2205 (XXI) of 17 December 1966, I Yearbook 65. The membership, initially set at 29, in 1973 was enlarged to 36. General Assembly Resolution 3108 (XXVIII) of 12 December 1973, V. Yearbook 10-12. Members are elected to six-year terms and are allocated among regions as follows: Africa, 9; Asia, 7; Eastern Europe, 5; Latin America, 6; Western Europe and Others, 9. This last "region" (the industrial West) includes, as "Others," Australia, Canada and the United States. Current UNCITRAL members from the "Western Europe and Other" category are Australia, Austria, Belgium, Finland, France, Federal Republic of Germany, Greece, U.K. and U.S.A.

22. There is no restriction on the size of the delegation sent by each member. Thus, Norway, as a member, would often include in the "Norwegian" delegation a representative of Sweden, Denmark and Finland - - a practice that did not complicate the work of the Commission since each delegation had only one voice.

There is an unwritten understanding that permanent members of the Security Council (U.K., U.S.S.R., U.S.A., France and China) will be elected to such bodies, but that its representatives will not become officers. China has not yet chosen to be elected.

23. 4 of the 9 members are of Common law background; northern Africa and the Civil law tradition have been represented with grace and outstanding ability by Egypt's representative, Prof. Mohsen Chafik, of the University of Cairo.

24. It is difficult to resist wider generalizations about experts in this stylized field. Certainly it would be hard to find an American professor of negotiable instrument law who is faster on the draw with hypothetical cases than certain representatives of great Socialist banking institutions.

25. It is possible to keep the membership quite small for Working Groups dealing with the most technical topics; Limitation, 7: Negotiable Instruments, 8; the Sales Working Group had 14 members and later 15. In the work on Shipping, where substantial and conflicting economic interests were at stake, the interest and anxiety of both carrying and cargo interests led to a working group of 21.

26. The legislative process for each of these fields is developed more fully in the introductions to Parts II-V of this Symposium.

The development of the work on Negotiable Instruments reflects the organizational skill of Mr. Willem Vis, then a Senior Legal Officer and now Chief, International Trade Law Branch.

27. The major Secretariat studies bear the inflated title "Report of the Secretary-General." These reports are made available in advance of the meetings in English, French, Russian and Spanish, through remarkable work, usually under intense time-pressure, by the U.N. Conference Services. At particularly sensitive spots (e.g. international shipping legislation) the legislators quickly recognized that two alternatives (e.g. "A" and "C") often were designed to reflect the preferences of the opposing interests, while a third alternative ("B") reflected an attempt to formulate an acceptable compromise. For example, see Report of the Secretary-General, "Responsibility of Ocean Carriers for Cargo" (A/CN.9/WG.III/WP.4) paras. 52-66, 97-126, III Yearbook 272-274, 279-283. (For this and related studies on shipping, the basic work was done by Mr. Gabriel Wilner, then a Legal Officer in the U.N. Trade Law Branch, now a member of the Law Faculty, University of Georgia).

28. U.N. custom normally cloaks its Secretariat in anonymity. Since I can now speak for myself, I can record my appreciation for the remarkable team of international civil servants who were my colleagues in the International Trade Law Branch: Senior Legal Officers Willem Vis (now Chief of the Trade Law Branch) and Peter Katona; Legal Officers Gabriel Wilner (see n. 27, supra), Kazuaki Sono (see n.8, supra), Hasan Ahmed (now Attorney-General, the Sudan), Aharon Barak (recently Attorney-General, and now a Justice of the Supreme Court, Israel), and John Dietz (see the Introduction to Part V, infra). Although we were never colleagues on the 34th floor, I am proud also to have been involved in bringing to the Branch, Sinha Basnayake (see the Introduction to Part III, infra), and also Eric Bergsten and Anthony Miller (see the article at II-D, infra). I wish also to record the support and encouragement given to this work by Mr. Blaine Sloan, until recently Director, General Legal Division, Office of Legal Affairs.

29. In the absence of special procedural rules adopted by the Commission, if formal procedures, were followed they would follow those of the General Assembly where, of course, there is no veto.

30. Such hybrid solutions in rules on the formation of contracts for international sales are subjected to sympathetic criticism by Prof. Eörsi, at II-G infra.

31. When shortage of time makes it impossible for all delegates to voice their viewpoints, the Chairman may ask the delegates to indicate their general position by a show of hands. The delegates seriously (and correctly) insist on the point that this is not a vote by the Commission. The result does not bind the Commission; even if a majority is found the Commission may continue to try to reach a wider basis for consensus.

32. It is necessary to mention the exacting and exhausting role of the Drafting Committee that labors, often in the evenings and over week-ends, to hammer the pieces emerging from different delegations and working parties into a coherent whole.

33. No one has yet had the effrontery to suggest that the diplomatic conference, with its size and traditions of formality, should dispense with votes and rules of procedure. But one cannot help hoping that a formal conference could be held without the emergence from the ranks of a delegate who demonstrates his mastery of parliamentary procedures by bringing progress to a halt. For an eloquent statement of the consequences of total law see Gilmore, The Ages of American Law III (1977): "In Hell there will be nothing but law, and due process will be meticulously observed."

Fortunately the diplomatic conference does not need to be efficient in formulating legislation. The texts referred to the conference have emerged from intensive study, negotiation and drafting by a Working Group and Commission that represent the various regions and interests of the world. When bright new faces appear at the conference with sweeping new proposals that would place excessive strain on the conference's law-making machinery, a phalanx of UNCITRAL veterans (and friends) is likely to rally under the banner: "Support the UNCITRAL Text."


Pace Law School Institute of International Commercial Law - Last updated October 9, 2008
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