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Extract from Ian Fletcher, Loukas Mistelis, Marise Cremona eds., Foundations and Perspectives of International Trade Law, London: Sweet & Maxwell (2001) 3-27. Reproduced with permission of the author.

Is Harmonisation a Necessary Evil?
The Future of Harmonisation and New Sources of International Trade Law

Dr Loukas Mistelis
Clive M Schmitthoff Lecturer in International Commercial Law, CCLS

1. Introduction: Recent Legal History and Legal Futurology
2. The Law of International Trade, Its Growth, Formulation and Operation
     1.1. Schmitthoff and International Trade Law
     1.2. Two meanings of "sources of law" - fontes juris
     1.3. Sources of law and their application by the various fora (litigation, arbitration, ADR)
3. Concept and Pitfalls of Traditional Harmonisation
     2.1 Means of Harmonisation
     2.2. Formulating Agencies
     2.3. Advantages and Drawbacks of Traditional Harmonisation
4. Concluding remarks: The New Legal Era - New Sources of Law?

1. Introduction: Recent Legal History and Legal Futurology

1-001 It is now official: The twentieth century can be characterised as the "century of transition". One can observe five distinct significant legal transitions in the 20th century.

First, as a result of two major world wars, two "worlds" were formed and a third joined them in the de-colonisation decades of the 1960s and 1970s. The membership of the United Nations increased from 50 states in the 1950s to 188 states in the late 1990s. The established world order with the "east-west" and "north-south" divides entered a period of transition in the 1990s with the collapse of the Soviet Union. A number of emerging markets are now in place with their legal systems in transition. In this legal (r)evolution, law reform projects draw upon existing domestic law, existing foreign laws, and law harmonised by various formulating agencies.[1] A great deal of "harmonised law" was negotiated and drafted without participation of the [page 4] majority of emerging markets, or at least, before the majority of these States (in the former Soviet Union and the large number of ex-colonies) assumed legal personality in public international law.

1-002 Secondly, after a period of nationalisation of legal systems in the first half of the 20th century - which was manifested, in particular, in civil law countries, with the introduction of national civil and/or commercial codes - in the second half of the century we have experienced a desire for harmonisation of law. Against this background, conflict of laws adequately served national legal interests,[2] and "localisation of issues" and "localisation of disputes" were the main objectives of (private) international law.[3] With the emergence of more instruments harmonising commercial law there is a need for a new conflict of laws system which may resolve conflict of conventions or conflict of harmonising instruments.[4]

1-003 Thirdly, in the final decade of the 20th century, harmonisation of law entered a new era. Newly independent states or emerging economies are in the process of rewriting their laws. While national identity is important, an effort is also made to the effect that internationally recognised standards or harmonised law forms the bulk of this modern legislation. Accordingly we have a symbiosis of convergence of legal systems and the creation of more (not purely arithmetically) diversified national legal systems. Modern harmonisation has often taken the shape of legal transplants, of exports of legal concepts and rules, from industrialised nations to emerging economies.[5] Such "harmonisation" results in regional groupings and considerable, albeit justified, diversification. More than ever before, it becomes evident that harmonisation is by no means synonymous with unification; harmonisation is a process which may result in unification of law subject to a number of (often utopian) conditions being fulfilled, such as, for example, wide or universal geographical acceptance of harmonising instruments, and with wide scope of harmonising instruments which effectively substitute all pre-existing law. To the extent that harmonisation of law is sporadic and incomplete, in practice, most harmonising laws are designed to work within and with existing laws.

1-004 Fourthly, an additional characteristic of this second half of the 20th century can be seen in the process of regional economic integration and the [page 5] delegation of law-making to regional international organisations. Consequently, regulation which is often understood to be of a public law nature enters the domain of commercial transactions which is traditionally referred to as private law. Similarly, private law self-regulation touches upon public law. Regulation of economic activity by way of legislation is linked with inherent problems. While regulation normally denotes state interference in the organisation of trade and is more often used for the "public law aspects" of commerce, in the second half of the 20th century trade regulation became a matter of international concern with the introduction of GATT and more recently of the World Trade Organisation and GATS. This international concern is also expressed by regional international organisations. While regulation is not synonymous with harmonisation, some experiences from regulatory attempts can help us to draw useful conclusions for the harmonisation process and vice versa. International commercial transactions are the interchange between public and private law,[6] between domestic and international law.

1-005 Finally, international arbitration has emerged as the preferred method for settlement of disputes in international business transactions.[7] The application of a national substantive law or a non-legal standard by the arbitral tribunal is far more complicated than the application of national law by the judges. The arbitrators may have no connection with or access to the applicable national law, unlike the national judges who normally apply the law they have been trained in for years. This is no defect of arbitration as a settlement of disputes mechanism. Arbitration deals preponderantly with international trade disputes while national courts deal predominately with national cases for which national law and state interests are often called upon. Thus, when selecting the standard to apply, parties or arbitrators may denationalise or internationalise the dispute. If there is an international convention relevant to the dispute, it should be given preference over the application of a national law. Further, where the dispute can most easily be resolved be resorting to the customs and usages of the particular trade or industry, such customs or usages should be the standard applied. Trade standards, which comprise the law of international trade, should be applied in preference and often in deference to the rules of national law.[8] Accordingly for a considerable number of [page 6] international trade disputes a new transnational legal order has emerged,[9] which is, if not detached from existing legal systems, more liberal in its application than existing substantive law. It seems that there may soon be a movement in national courts which will follow non-judicial settlement of disputes methods by applying anational and extra-legal and standards.[10]

1-006 The twentieth century was the century of transition and emerging globalisation. Globalisation is rather a western economic concept with significant legal connotations. "Western" lawyers observed that this is an era of globalisation of law which will inevitably accompany the globalisation of economy.[11] Globalisation is foremost an economic process.[12] It is also a political event,[13] as evidenced by the spread of rule of law and human rights among nations; many human rights violations are no longer treated as domestic affairs. "Globalisation is causing, and being reinforced by, a world-wide convergence of economic and political values that portend a possible, though distant, future world in which human beings will look upon themselves as part of a single humane civilisation comprised of a single human race."[14] Law has been important in managing the global economy and may gain importance with respect to political globalisation.[15] [page 7]

1-007 This is not the first era of globalisation of law. Medieval lex mercatoria and ius commune (europae) were genuine global legal rules.[16] The same view was expressed several times about forty years ago by Clive Schmitthoff.[17] Although globalisation of markets is a process, which appears to be unstoppable, as seen for example in the recent increase in mergers and acquisitions, there are a number of good reasons why globalisation of law (i.e. an introduction of a legal system binding all over the world) is problematic. The main question linked with such a potential development is who will dictate authoritatively what "best law" is? If an international organisation, which? There are also matters of democratic accountability associated with the legislative process and the different levels of power and influence of the negotiating States as well as national or regional interests. It may be the case that for a certain transitional period the interest of a State is to have a protective or liberal policy.

1-008 Undoubtedly, with the increasing globalisation of economy, we will experience more cross-border activities, and, with the emergence of electronic commerce, lawyers will be faced with transactions which cannot be easily localised. To the extent that the modern economy is a natural development, regulators should not interfere in anticipation of problems. Technology is faster than legislative procedures and legislators should interfere only to "correct" or amend insufficient existing laws.

1-009 In this new era of a globalising economy it remains to be seen what the reaction of global capital markets to continuing differences in commercial law systems will be. It appears that the notorious phenomenon of forum shopping has been welcomed in several circumstances.[18] Currently, it appears that a similar "capital market shopping" and the risk taking relating to that have been beneficial to some global players. However, the need for certainty and predictability, or indeed uniformity is topical. Convergence of legal systems or harmonisation of commercial law will, in the long run, stabilise and strengthen national economies and will create a healthy competition environment. This is expected to be a lengthy process as in the interim both [page 8] legislators and the business community will have to cope with the increased regulatory competition.

1-010 What does it leave for the 21st century? Has the 20th century succeeded in harmonisation? The choice is whether we will opt for a globalisation of commercial and financial law, a gradual convergence of legal regimes through legal and institutional transplants or an international harmonisation though hard or soft law. What are the objectives of harmonisation in the 21st century?[19] And what is the agenda of the formulating agencies?[20] Is it possible to develop a new corpus of legal provisions which is tailor-made for international commercial transactions? The purpose of this chapter is to revisit relevant writings of Clive Schmitthoff. We will look at the way the law of international trade has developed in the last century (2.); then we will briefly discuss the concept, the advantages and pitfalls of harmonisation (3.). In the final part we will focus on the chances of developing new sources of law applicable to international transactions, in the manner of the old jus gentium (4.).

2. The Law of International Trade, Its Growth, Formulation and Operation

1-011 The law of international trade has grown and shaped up significantly in the 20th century. Clive Schmitthoff has effectively delimited international trade law in its modern proportions and supported its harmonisation (2.1.), clarified the relevant sources of law (2.2.) and asserted the relevance and importance of the various fora in which the law is applied (2.3.).

2.1. Schmitthoff and International Trade Law

1-012 The law of international trade in its modern perception has been largely defined by Clive Schmitthoff. His standpoint is of paramount importance. "It is a remarkable fact - as remarkable as the world-wide acceptance of the rule [page 9] of law and the universal acceptance of corporateness - that the law of international trade shows a striking similarity in all national legal systems".[21] Two remarks can be added here. First, Schmitthoff highlights similarity not uniformity. It may be argued that it is the similarity and the functional comparison that should be addressed by legal scholars and practitioners and not the issue of uniformity, which is as difficult to achieve as it is desired. Similarity and a functional comparative approach [22] can lead to convergence which in most cases will be synonymous to uniformity. Second, the law of international trade is applied in every municipal jurisdiction only by leave and license of the sovereign. According to Schmitthoff international uniform or domestic international trade law rules are applicable as a result of conflict of laws. It is implied that international comity [23] and sophisticated conflict of laws systems will allow for application of foreign law, at least if the parties have exercised their autonomy and made an effective choice of law in their contract or subsequently.[24]

Schmitthoff provided a delimitation of international trade law. Accordingly,

"... the law of international trade covers an unusually wide spectrum of business activity. [It includes] ... The International Sale of Goods; Marketing Organisation Abroad; Finance of Exports; Insurance of Exports; Transportation of Exports; International Commercial Dispute Settlement; Construction and Long Term Contracts; and Customs Law".[25]

In a more conceptual manner he added:

"International trade transactions relate to the exportation of goods or services from one country to another ... These transactions are referred to ... as export transactions. The conduct of export transactions can be divided into two categories: transactions founded on the contract for the international sale of goods and those having as their object the supply of services abroad, such as the construction of works and installations in another country."[26]

1-013 Schmitthoff clearly saw the emergence of international trade law as a separate body of legal rules, as one of the outstanding features of the legal development of the 20th century and contributed significantly to its current shaping. The development of international trade led to a division of the traditional commercial law into two branches, the law applying to domestic transactions and that applying to international business transactions.

1-014 The emergence of special rules governing international commercial transactions was also the result of the intensification of trade in the post World War II era and the development of modern telecommunications.[27] Another significant development is illustrated in the different levels of international economic integration and incrementally significant regulation. While domestic transactions are firmly embedded in national law, in the law of international trade a growing tendency can be observed to move away from the fetters of national law and to establish a common international [page 10] consensus.[28] It is observed [29] that the legal techniques of carrying on international trade are the same irrespective of the political, ideological or economic orientation of the countries in question. The universal acceptance of the legal techniques of international trade has led to a new conception of international trade law which includes along with statutory, customary, and case law, voluntary law and the lex mercatoria.[30]

1-015 Against this background there has been an increasing movement away from the purely domestic law of international trade and towards what has become known as transnational commercial law, i.e. the corpus of law resulting from the harmonisation or convergence of national laws, whether by international convention, conscious or unconscious judicial parallelism, uniform rules for specified types of contract and, more recently, international restatements of principles of contract law.[31]

1-016 All these aspects are examined in this book [32] and are also considered in the discussion of harmonisation in this chapter. Consequently, the notion of international trade law lato sensu is adopted.

2.2. Two meanings of "sources of law" - fontes juris

1-017 The modern character of the law of international trade is derived from many sources. The international business community itself supported by international agencies and trade associations, formulates international commercial custom in terms intended to have international currency.[33] Hence, the next step after the delimitation of the subject matter of international trade is to determine the sources of this law. In this process it is essential to distinguish the two meanings of "sources of law" - fontes juris.

1-018 The term "source of law" denotes not only the sovereign authority by which a legal rule is applied and the origin of such rules but also the manifestations and substance of the principles and rules of law. The analysis of the term includes both substantive sources - what the law is, what the regulation is - and formal sources, e.g. statute, custom, convention. It is essential in that context to assert the internationality of the relevant sources, or at least their suitability for international transactions. Consequently, we cannot overemphasise the role of party autonomy in establishing an autonomous international commercial law founded on universally accepted standards of business conduct. Again, the criterion of similarity, and not that of uniformity, should be adopted. [page 11]

1-019 Schmitthoff, who believed in the spontaneous growth and development of the law of international trade, especially in the shape of lex mercatoria, was, however, aware of the fact that legal certainty could not rest in spontaneity. Accordingly in the late 1950s and the early 1960s a number of meetings were convened by the International Association of Legal Sciences with the support of UNESCO.[34] There, Clive Schmitthoff, looking at all the organisations that were formulating uniform law texts at the time, concluded that there was a lack of purposeful co-operation and co-ordination between these agencies and that an international agency of the highest order, possibly on the level of the United Nations, was needed. The General Assembly of the United Nations with its Resolution 2205 (XXI) of 17 December 1966 accepted the proposal and created UNCITRAL.

2.3. Sources of law and their application by the various fora

1-020 Schmitthoff was also aware of the fact that the law of international trade, whatever its origin, is applied in a domestic jurisdiction only by leave and licence of the sovereign. This was particularly relevant in jurisdictions of planned economy.[35] In his 1968 Travers lecture he stated that "one of the major problems of our time is the need to reconcile the demands of the national state with the ideal of international co-operation. This problem constitutes a challenge not only to governments but to the conscience of each of us ... members of the society. The present world order is still founded on the traditional concept of the national state ... but we cannot disregard the growing trend towards internationalism which, despite occasional failings, has developed new forms of global and regional organisation".[36]

1-021 This problem is, however, not simply a political or ideological one. In litigation courts have to apply the law in making decisions. Most national courts are reluctant to apply foreign law, more so if the foreign or international rule can only be found in a trade usage. Most national laws acknowledge customary rules as a source of law. The problem with customary rules and trade usages relates to their crystallisation. There is uncertainty until the parties have pleaded and the court has found and crystallised the custom.

1-022 In addition it must be pointed out that while the parties are free to regulate their transactions as they see fit, this freedom is restrained once the transaction has effects outside the parties' contractual sphere, their micro-cosmos. In the "outside world" freedom of contract may be restrained by public policy considerations and/or relevant mandatory rules.

1-023 With the growth of non-judicial settlement of disputes, the landscape has changed significantly. International commercial arbitration with its liberal [page 12] and international approach contrasts favourably with the nationalist conceptions of many national courts.[37] Arbitration is normally a tailor-made procedure for international trade disputes. Extra-legal standards, trade usages, and other trade standards, which are part of the law of international trade, may be applied in preference and often in deference to the rules of national law.[38] Accordingly for a considerable number of international trade disputes a new transnational legal order has emerged,[39] which is a new law merchant for the global marketplace,[40] a lex arbitralis materialis.

1-024 Further, alternative disputes resolution proceedings may well result in a decision without the strict application of law, or even without any reference to law. However, ADR decisions are binding on the parties and are deemed to be a legal (but non-judicial) settlement of the dispute.

3. Concept and Pitfalls of Traditional Harmonisation

1-025 There is no doubt that during the past fifty years there has been a remarkable degree of harmonisation among nations in the law application to international commercial transactions. A considerable number of different harmonising instruments has been employed in the realisation of this goal. Often harmonisation has occurred and will occur for reasons exogenous to the law.[41] Is harmonisation an ideal and how this ideal can be best achieved? What are the means of harmonisation and how can they be classified (3.1.)? Which groups of formulating agencies are involved in the process of harmonisation of law (3.2.)? What are the advantages and the disadvantages (3.3.) of traditional harmonisation of law?

2.1. Means of Harmonisation / Sources of International Trade Law

1-026 There are several classifications of the means of harmonisation of law. Most of them do not consider the theoretical discussion about sources of international trade law. Often, lex mercatoria is included as a distinct source of law. We will first look at the various classifications before suggesting a via media. An appropriate classification will also delimit the nature and evolution of transnational commercial law.

1-027 Schmitthoff makes the distinction between "international legislation" and international commercial custom:

1-028 Schmitthoff's distinction does not prima facie accommodate international (scholarly) restatements of law, although, arguably in most cases, these may well fall under the scope of international commercial custom, formulated not by international agencies but by professional groups. Examples of such international restatements are the 1994 UNIDROIT Principles of International Commercial Contracts,[52] the 1994/1999 Principles of European Contract [page 14] Law,[53] the 1999 CENTRAL List of Principles, Rules and Standards of Lex Mercatoria [54] and the 1999 IBA Rules of Evidence in International Commercial Arbitration.[55]

Spanogle focuses on four harmonising techniques:[56]

  1. Uniform substantive law
  2. Uniform choice of law rules
  3. Lex mercatoria
  4. Standard form contracts.

1-029 Spanogle's list emphasises rightly the importance of conflict of laws. The techniques are neither mutually exclusive nor incompatible. Only the first two may be characterised as sources of law stricto sensu. Nevertheless formulating agencies may elaborate any of the four.

1-030 Goode suggests that there are at least nine methods by which harmonisation may be either effected or induced, namely:[57]

  1. a multilateral convention without a Uniform Law as such;
  2. a multilateral convention embodying a Uniform Law;
  3. a set of bilateral Treaties;
  4. [European] Community legislation - typically, a Directive;
  5. a Model Law;
  6. a codification of custom and usage promulgated by an international non-governmental organisation;
  7. international trade terms promulgated by an international non-governmental organisation;
  8. model contracts and general contractual conditions;
  9. restatements by scholars and other experts.[58] [page 15]

1-031 According to Goode, only the first four can be seen as sources of law, subject to such constitutional acts as may be necessary to give them force of law in a given jurisdiction. The last four instruments "depend for the[ir] efficacy upon incorporation into contracts, though a codification of custom and usage could perhaps be relied on as the best evidence of custom and usage and as such be imported by implication into a contract."[59] Goode here excludes uncodified trade usages because of their diffuse and variegated character. However, a few years later he focused on trade usages [60] and commented:

"... At the time of its making a convention is not law at all; at most its existence signifies that States are contemplating its adoption. By contrast an international trade usage has normative force through the conjunction of usus and opinio juris."[61]

1-032 Goode's classification is inclusive and takes account of the doctrinal hierarchy of norms. It does not, however, consider the fact that contractual parties often want to regulate their transactions without any reference to a state law.

1-033 Van Houtte highlights the classification of the harmonising instrument in the origin and hierarchy of sources of law. Accordingly, three main groups can identified with several sub-groups:[62]

1-034 The above classification has merits in that it sheds light on the multiplicity of sources of international trade law. The pitfalls of this classification are the emphasis of state-made law and the support for so-called hard law provisions. It implies a certain hierarchy of international trade law norms which favours international conventions and mandatory national rules over contractual stipulations and trade usages.

1-035 A number of different means are employed for the harmonisation or [page 16] international regulation of commercial law. An alternative to the previous classifications may be found in a distinction which will accommodate both the mandatory or optional nature of rules and proximity of the rules to the parties. According to this categorisation a distinction can be made between hard law, soft law [63] and softer law or extra-legal standards. A collateral distinction for harmonisation purposes can be made between "hard law" or law harmonised by (inter-)governmental agencies and "private harmonisation" or "soft law".

1-036

1-037

1-038

1-039 This tripartite distinction of harmonising instruments reflects also the origin of authority of the various sources of international commercial law. Hard [page 18] law is normally made be the state (statutory law or international conventions) or at least endorsed by the state (international custom codified or crystallised). Soft law is normally approved and given legal effect by private parties, although often States are involved in its formulation.

2.1. Formulating Agencies

1-040 Under the term "formulating agencies" we understand all agencies or organisations, national, regional or international, which are entrusted, delegated with or merely involved in the formulation of trade policy or rules for the conduct of international commercial transactions. The term "formulating agencies"[70] precisely describes one aspect of the activities of international organisations but suitably covers all "new international law-making" organisations. A significant number of formulating agencies have emerged in the last 100 years.[71] Most of them claim to be international standard setters in that they possess either acquired expertise in legislative drafting or have international experience by virtue of their membership or may even export in modified from successful domestic legislation.

Schmitthoff has recommended a distinction between

1-041 This distinction was adequate for its time. In this chapter our differentiation goes further and is the result of the ever increasing number of formulating agencies. We are looking at the following groups:

1-042 A few international organisations are entrusted with the task of harmonising aspects of commercial law and they actually use both hard and soft law means. These organisations are the United Nations Commission on International Trade Law (UNCITRAL),[73] the International Institute for the Unification of Private Law (UNIDROIT),[74] and the Hague Conference on Private [page 19] International Law.[75] Recently, the World Trade Organisation (WTO)[76] joined this group.

1-043 Most regional international economic integration organisations entail an element of harmonisation of law: ASEAN,[77] EC/EU,[78] MERCOSUR,[79] North American Free Trade Association (NAFTA),[80] Organisation of American States (OAS),[81] Organisation for African Unity (OAU).[82] In the case of the EC approximation of laws covers the lengthy list of aspirant member states. Regional organisations use again both private and public means.

1-044 Further, a number of non-governmental international mercantile organisations or professional associations attempt to unify and harmonise commercial law. Among them most prominently and successfully, the International Chamber of Commerce (ICC),[83] the International Law Association (ILA),[84] the International Bar Association (IBA),[85] and the Comité Maritime International (CMI). Non-governmental organisations or professional associations often promulgate model laws, model rules, standard contracts or draft conventions, in short, they most often employ soft law. Occasionally they co-operate with intergovernmental organisation in the formulation of hard law instruments, in particular, international conventions.[86]

1-045 Finally, several other international organisations, such as the World Bank,[87] the European Bank for Reconstruction and Development (EBRD),[88] the International Monetary Fund (IMF)[89] have demonstrated in a number of endeavours their interest in being involved in the lawmaking process or at least in standard-setting. In principle, neither the World Bank nor the EBRD nor the IMF have any power to legislate and hence standard-setting is the appropriate form of involvement.

1-046 Inevitably there are at least two competing strategies in the harmonisation of international commercial law on a world-wide basis: the competition is between the "global" conventions proposed by international organisations and the regional agreements drafted by regional organisations. The goals of such regional conventions often derive from quite different motivations, but often produce agreements that concern the same subject matter as the global conventions.[90] In principle the conflict between harmonisation initiated by intergovernmental organisations and non-governmental organisations may not be as acute, provided that lobbyists from one side and state functionaries [page 20] on the other side communicate clearly the interests they represent and the necessary compromises are made. It is in any event essential that formulating agencies co-operate closely, both in terms of selecting projects, agreeing on organisations to undertake the drafting work and deciding the appropriate means of harmonisation.[91] Actually, it is undoubted that "there are horses for courses", i.e. some agencies have more experience and expertise in dealing with some issues and formulating a specific type of instrument, others specialise in different types of harmonising technique. In any event the professional associations and the commercial community must be involved in the law-making process, as the intended or ultimate beneficiaries often have clearer and more concrete views as to potential solutions.

4.1. Advantages and Drawbacks of Traditional Harmonisation

1-047 Harmonising instruments, irrespective of their origin, have two major permissive and not mutually exclusive objectives. First, they aim at unification of law, where there is disparity. Second, they aim at law reform when the existing law cannot cope with evolving commercial practices. In either case the ultimate objective is the development of a legal framework and the setting of international standards (often as a result of crystallisation of existing trade usages). Against these two objectives the advantages of harmonisation of law seem to be self-evident. However, the business community is very reluctant to embrace any change in law. The same applies for both the practising lawyers and legislators. "Why mend it what is not broken?" is a question often asked by legislators when law reform is recommended. Accordingly it is often very hard to convince the business community or national legislators even to take an interest in proposals for harmonisation, still less to give the proposal their support.[92] A typical example is the ongoing reluctance of the United Kingdom with respect to the CISG.[93]

It is essential to restate some of the advantages of harmonisation:

1-048 The attribute "effective" was added to the advantages relating to conflict of laws. Unfortunately, as harmonisation does not usually result in wholesale unification, conflict of laws remains relevant and significant.[96] There are two reasons why harmonisation does not normally result in unification or uniformity: (a) normally the harmonising measure has limited scope (e.g. formation of contracts of sales only) and (b) not every state in the world adopts the harmonising measure. In addition, there are two reason why harmonisation instruments are not successful: (a) often the wrong type of harmonising instrument is chosen and (b) there is lack of political will or support in implementing the harmonising instrument into national law. All above four reasons assume that the harmonisation effort was adequately negotiated and drafted and that it undisputedly has merits.

1-049 The main pitfalls of traditional international harmonisation of commercial law or indeed co-ordination of trade regulation relate to international conventions. Here are the major drawbacks of harmonisation by international conventions:

1-049 Alternative means of soft harmonisation of commercial law, such as codification of customary law or trade usages, in most cases avoid the pitfalls of international conventions. Soft harmonisation is open-ended and provides for a flexible and effective convergence of different legal systems. In any event, both trade regulation and international harmonisation of commercial law are manifestations of the need for comparative law studies.[100] Modern comparative law is functional and, if properly used, produces remarkable results. One problem that needs to be addressed is that traditional and modern harmonisation alike ignores aspects of public and procedural law. [page 23]

4. Concluding Remarks: The New Legal Era - New Sources of Law?

1-050 Five sets of conclusions can be drawn from the exposition above and some forecasts will also be attempted.

First, when policymakers and scholars think of global trade lawmaking, they generally think of treaties and declarations of states. The "public" or "hard law" model based on state rights and obligations has predominated. But alongside that effort, little remarked on by activists or academics, a system of "private" or "soft" standards and obligations is developing. This soft or private law model is initiated by and applicable to producers of goods and providers of services rather than to states. "It appears that globalisation may not erode state power but may merely re-channel it".[101] In fact, we experience the emergence of a new international law. International law, once the province of specialists concerned mostly with traditional public international law (how national governments deal with each other or with international organisations), "has become an important body of regulatory and commercial law directly affecting private lives and commercial transactions. Our legal culture, however, has not caught up with this transformation."[102] The emergence of a new body of rules has proceeded in parallel to the continued development of what we traditionally have thought of as international law. The "new international law" is stemming from a collection of very different international agencies, such as the International Monetary Fund and the organs of the EU, or private self-constituting, and ad hoc, such as the working groups of the International Chamber of Commerce.[103] All these formulating agencies employ many different processes in promulgating (negotiating and drafting) rules and standards that constrain individual actors more or less directly. This body of new international law is relatively permanent and independent of individual states, in that they are not subject to any ratification.

1-051 Secondly, the merits and drawbacks of international harmonisation through hard and soft law, have been discussed extensively in the last twenty years. In addition, lex mercatoria [104] is an effort to standardise commercial [page 24] terms and practices across international borders. It brings more certainty to cross-border transactions and helps increase international economic activity that benefits the economies involved. It is incomplete, as it covers only areas, where businesspersons feel there is a need for uniformity, and is virtually global. This soft law harmonisation is arguably more effective than other models and functional when needed.

1-052 Third it appears that all harmonisation methods have their supporters. However, as far as sources of law are concerned, we move towards substantive international private law, international choice-of-law rules and more lex mercatoria,[105] or leges mercatoriae. Here a threefold prognosis may be outlined.

1-053 Fourthly, a triumph of substance over procedure has been observed.[108] This statement may be given two different interpretations and further implications: [page 26]

1-054 Finally, a paramount consideration of everyone involved in the harmonisation of international commercial law is the establishment of a legal framework which will facilitate cross-border trade. This will depend on two factors: predictability and availability of familiar legal or non-legal standards.[112]

The emergence of lex mercatoria and soft law along with traditional sources of law brings to mind Roman law and ius gentium. In Roman law there was a distinct law applicable for international cases. Both the very essence of lex mercatoria and the emergence of a new dualism (national law for domestic transactions, substantive international private law for international transactions) are descriptive of the past and prescriptive for the future. Given the potential for further genetically modified conflict of laws, Schmitthoff's call for a world commercial code [113] remains intact. This is the beginning of third generation of harmonisation of international trade law. The new dualism is [page 27] no absolute virtue. Often the success of the current regulatory web lies in the interaction between different sources of law and when a good framework is elaborated this should be applicable for both domestic and international transactions. A world commercial code could be formulated for international transactions first with the expectation to be applicable for domestic transactions too at a later stage. Schmitthoff wanted UNCITRAL to be entrusted with the magnus opus, for which UNCITRAL should co-operate with other formulating agencies. "When - and not if - this task is accomplished our time will have what it needs: a transnational code of international trade law of world-wide application."[114] Let us hope that this symposium and this book may lay a modest foundation stone.


FOOTNOTES

1. See Loukas Mistelis, "Regulatory Aspects: Globalization, Harmonization, Legal Transplants and Law Reform. Some Fundamental Observations ", in Lastra (ed.). The Reform of the international Financial Architecture, London et al (Kluwer) 2000, 153-173, 163-165 = also in 34 (3) The International Lawyer 1055-1069 (Fall 2000).

2. See Gerhard Kegel, "Fundamental Approaches", in International Encyclopaedia of Comparative Law, Vol. III, Chapter 3, Tübingen et al. (Mohr) 1987, at paras. 3-8 to 3-13, in particular, 3-13 (pragmatists).

3. See Friedrich Carl von Savigny, System des heutigen Römischen Rechts, Vol. VIII, Berlin 1849, at 28 and 108 and Kegel, ibid., at 3-8.

4. For the methodological challenges of modern conflict of laws see Loukas Mistelis, Charakterisierungen und Qualifikation im internationalen Privatrecht, Tübingen 1999 (Mohr), 16-19, 201-208. See also Henri Batiffol, "Le pluralisme de méthodes en droit international privé", RCADI 139 (1973-II), 75-148; Erik Jayme, "Identité culturelle et intégration: le droit international privé postmoderne - Cours général de droit international privé", RCADI 251 (1995), 9-268; Friedrich Juenger, Choice of Law and Multistate Justice, Dordrecht et al. (Kluwer) 1993, 143-146; Gerhard Kegel, "The Crisis of Conflict of Laws", RCADI 112 (1964-II), 95-263; Klaus Schurig, Kollisionsnorm und Sachrecht - Zu Struktur, Standort und Methode des internationalen Privatrechts, Berlin 1981.

5. See Mistelis, supra note 1, 34(3) International Lawyer 1065-1067 (2000) See also Alan Watson, "Legal Transplants and European Private Law", 4.4. Electronic Journal of Comparative Law (December 2000), available at <http://law.kub.nl/ejcl/44/44-2.html>. Watson initiated the discussion about legal transplants with his book Legal Transplants, 1st edition Edinburgh 1974, 2nd edition Athens, Ga., 1993. This book has been often criticized, more recently by Pierre Legrand, "The Impossibility of 'Legal Transplants'", 4 Maastricht Journal of European and Comparative Law 111 et seq. (1997).

6. Some of the theoretical background in: John A. Spanogle, "The Arrival of Private International Law", 25 Geo. Wash. J. Int'l L. & Eco. 477-522 (1991). Ralph G. Steinhardt, "The Privatization of Public Law", 25 Geo. Wash. J. Int'l L. & Eco. 523-553 (1991). Steinhardt states in the context of the public/private distinction in international law that "the distinction ... can no longer be defended because the concerns, the actors and the processes of "public" international law have been expanded - "privatized" - in this century. Conflicts law and international business transactions have become a staple of state-to-state relations, and non-state or private actors have taken an increasing role in the articulation and enforcement of international standards". Ibid., at 543.

7. In London alone there are annually more than 4,500 arbitration and ADR proceedings. See Judith Gill, Lord Hacking, Arthur Marriott, Geoff Prevett and Peter Rees (eds.) Delivering Results - Dispute Resolution in London (2000), at 5.

8. See Julian D M Lew, Applicable Law in International Commercial Arbitration, Oceana 1978, para 443, at 582-3. For further references regarding the law applicable to the merits of international arbitration disputes see Julian D M Lew / Loukas Mistelis / Stefan Kröll, Comparative International Commercial Arbitration, London (Kluwer) 2001, Chapter 17.

9. See Yves Dezalay and Bryant Garth, Dealing in Virtue - International Commercial Arbitration and the Construction of a Transnational Legal Order, Chicago & London (U. of Chicago Press), 1996.

10. See to the same effect Gunther Teubner (ed.), Global Law Without a State, Aldershot (Dartmouth) 1997; Klaus-Peter Berger, "The New Law Merchant and the Global Market Place: A 21st Century View of Transnational Commercial Law", [2000] Int.A.L.R. 91-102, 100-102. See also Channel Tunnel Group v Balfour Beatty Ltd [1993] 1 All ER 664 at 673.

11. See John A. Spanogle, Jr., "American Attorneys' Use of International and Comparative Legal Analysis in Everyday Practice", 28 Wake Forest L. Rev. 1-5, at 1 (1993): "Any business person can tell you that the Global Economy is here. The necessity to produce wherever it is most advantageous, and then to market and compete all over the world, is hardly news to them. It does still seem to be news to much of the legal profession, however, and to many in legal education."

12. The origins of globalisation can be traced back to the writings of Wendell Wilkie and the Club of Rome. These early formulations, however, occurred prior to the collapse of Bretton Woods and the development of the new global communication technology. See Gordon Walker & Mark Fox, "Globalization: An Analytical Framework", 3 Ind.J. Global Legal Stud. (1995/96): <http://www.law.indiana.edu/glsj/vol3/no2/walker.html>. "Globalization" should be distinguished from "internationalization", the guiding force of the 20th century, see Jost Delbrück, "Globalization of Law, Politics, and Markets - Implications for Domestic Law: A European Perspective", 1 Ind. J. Global Legal Stud. (Fall 1993) = <http://www.law.indiana.edu/glsj/vol1/delbruck.html>.

13. In response to "fears of globalisation" many nations have taken to defending their culture against foreign influence. Regarding such fears see "The New Trade War", The Economist, December 4, 1999 and letters to the editor, The Economist, December 18, 1999.

14. Alex Y. Seita, "Globalization and the Convergence of Values", 30 Cornell Int'l L.J. 429-491, at 429 (1997).

15. See ibid., at 479-484 with accompanying footnotes. The focus is on rule of law, human rights and the regulation of international trade. See Martin Shapiro, The "Globalization of Law", 1 Ind. J. Global Legal Stud. (Fall 1993) = <http://www.law.indiana.edu/glsj/vol1/shapiro.html>; The Symposium "The Rule of Law in the Era of Globalization" published in 6 Ind. J. Global Legal Stud. (Spring 1999) and in particular, David P. Fidler, "Introduction", id., 421-424; Bruce A. Markell, "A View from the Field: Some Observations on the Effect of International Commercial Law Reform Efforts on the Rule of Law", id., 497-510. For all major aspects of globalisation of law see Eric Loquin and Catherine Kessedjian, La mondalisation du droit, Litec 2000; Jürgen Basedow and Toshiyuki Kono (eds.), Legal Aspects of Globalisation - Conflict of Laws, Internet, Capital Markets and Insolvency in a Global Economy, (Kluwer) 2000. See further Ernst-Joachim Mestmäcker, "Rechtsfragen einer Ordnung der Weltwirtschaft", in Holl / Klinke (eds.) Internationales Privatrecht - Internationales Wirtschaftsrecht, Köln et al 1985, 25-36; Klaus-Peter Berger, "Einheitliche Rechtsstrukturen durch außergesetzliche Rechtsvereinheitlichung", Juristen-Zeitung 369-377 (1999); Jarrod Wiener, Globalization and the Harmonization of Law, London and New York (Pinter) 1999.

16. See Rudolf Meyer, Bona fides and lex mercatoria in der europäischen Rechtstradition, Göttingen 1993 (Wallstein). See also Berger, supra note 10, at 92 et seq. See also Watson, in EJCL 2000, supra note 5, sections III and VIII.

17. Clive M Schmitthoff, "The Law of International Trade, Its Growth, Formulation and Operation", in Clive M Schmitthoff (ed.), The Sources of the Law of International Trade with special reference to East-West Trade, London 1964, 3-38 = Chia-Jui Cheng (ed.), Clive M Schmitthoff's Select Essays on International Trade Law, Dordrecht et al. (Kluwer) 1988, 137-169; Clive M Schmitthoff, The Unification of the Law of International Trade, JBL 1968 105-119 = Cheng, id., 206-218; Clive M Schmitthoff, "The Codification of the Law of International Trade", JBL 1985 34-44 = Cheng, id., 243-251; Clive M Schmitthoff, "Nature and Evolution of the Transnational Law of Commercial Transactions", in Norbert Horn and Clive M Schmitthoff (eds.), The Transnational Law of International Commercial Transactions, Deventer 1982, 19-31 = Cheng, id., 231-242; Clive M Schmitthoff, "International Business law: A New Law Merchant", II Current Law and Social Problems 129 (1961) = Cheng, id., 20-37.

18. See Kurt Siehr, "Forum Shopping" im internationalen Rechtsverkehr", Zeitschrift für Rechtsvergleichung 1984 124-144; X., "Forum Shopping Reconsidered", 103 Harv. L. Rev. 1677-1696 (1990); Friedrich Juenger, "What's Wrong with Forum Shopping?", 16 Sydney L. Rev. 5-13 (1994); Brian R. Opeskin, "The Price of Forum Shopping: A Reply To Professor Juenger", 16 Sydney L. Rev. 14-27 (1994); Friedrich Juenger, "Forum Shopping: A Rejoinder", 16 Sydney L. Rev. 28-31 (1994); Oskar Hartwieg, "Forum Shopping zwischen Forum Non Conveniens und "hinreichendem Inlandsbezug" - Ein realer Fall-Vergleich", 51 Juristen-Zeitung 109-118 (1996).

19. See infra Chapters 2-6 where the role of UNCITRAL, ICC, EU, UNIDROIT, and the Hague Conference with respect to harmonisation of law is discussed by Gerold Herrmann, Maria Cattaui Livanos, Stephen Weatherill, Herbert Kronke and Hans van Loon respectively.

20. See id.

21. Clive M Schmitthoff, "The Law of International Trade, Its Growth, Formulation and Operation", in Clive Schmitthoff (ed.), The Sources of the Law of International Trade with special reference to East-West Trade, London 1964, 3-38, at 3.

22. On comparative concepts see C.J.P. van Laer, "The Applicability of Comparative Concepts", 2.2 Electronic Journal of Comparative Law (1998), and van Laer, Het nut van comparatieve begrippen, Antwerp/Groningen (Intersentia) 1987.

23. See for example Joel Paul, "Comity in International Law (Private International Law)", (1991) Harv. J. Int'l. L. 1-79; P. Dane, "Vested Rights, 'Vestedness' and Choice of Law", 96 Yale L. J. 1191-1275 (1987).

24. In some legal systems, also if pleaded and proven by the parties. According to Richard Fentiman, Foreign Law in English Courts, Pleading, Proof and Choice of Law, Oxford 1998, at 21: "It is commonly supposed, ..., that all choice of law rules are optional, in the sense that the application of foreign law can always be prevented if neither party pleads it." She also Chapter 12 by Oskar Hartwieg

25. See Clive Schmitthoff, Schmitthoff's Export Trade. The Law and Practice of International Trade, 9th edition, London (Stevens & Sons/ Sweet & Maxwell) 1990, at vii.

26. Ibid., at 3; 10th edition. by Leo D'Arcy, Carole Murray and Barbara Cleave, London (Sweet & Maxwell) 2000, at 1-001.

27. Clive Schmitthoff already in the 1980s was aware of the issues of dematerialisation of trade instruments and the emergence of electronic commerce. See Clive M Schitthoff and Roy M Goode (eds.), International carriage of goods: some legal problems and possible solutions, London (CCLS) 1988.

28. See Clive Schmitthoff, Commercial Law in a Changing Economic Climate, 2nd ed., London (Sweet & Maxwell) 1981, at 18.

29. A. Goldštajin, "The New Law Merchant Reconsidered", in Law and International Trade, Festschrift for Clive M. Schmitthoff, Frankfurt 1973, 171, 174.

30. See Schmitthoff, Commercial Law in a Changing Economic Climate, supra note 27, at 1 et seq., 19 et seq.

31. See Roy Goode, Commercial Law in the Next Millennium, London (Sweet & Maxwell) 1998, at 88.

32. See chapters 6 (by van Loon), 7-11 (by Jackson, Petersmann, Muchlinski, van Calster, Cremona), 25-26 (Norton, Mörner) and 23-24 (Amissah, Nimmer).

33. See Clive Schmitthoff, "The New Sources of the International Trade Law", XV International Social Science Journal 2 (1962) = Chia-Jui Cheng (ed.), Clive M Schmitthoff's Select Essays on International Trade Law, Dordrecht et al. (Kluwer) 1988, 131-136, 131.

34. The London 1962 Conference resulted in a famous publication: Clive Schmitthoff (ed.), The Sources of the Law of International Trade with special reference to East-West Trade, London (Stevens & Sons) 1964.

35. Schmitthoff, ibid, at p. 4.

36. Clive M Schmitthoff, The Unification of the Law of International Trade, JBL 1968 105-119, at 105 = Cheng, op. cit., 206-218, at 206. See to the same effect Ernst-Joachim Mestmäcker, Rechtsfragen einer Ordnung der Weltwirtschaft, in Holl/Klinke (eds.), Internationales Privatrecht Internationales Wirtschaftsrecht, Köln et al 1985, 25-36; Uwe Blaurock, "Übernationales Recht des Internationalen Handels", Zeitschrift für Europäisches Privatrecht 247-267, at 248 (1993).

37. Judge Lagergen, cited in Schmitthoff, in Cheng (ed.), Clive M Schmitthoff's Select Essays on International Trade Law, Dordrecht et al. (Kluwer) 1988, 137-169, 157.

38. See, for example, Julian D M Lew, Applicable Law in International Commercial Arbitration, para 443, at 582-3.

39. For further references regarding to the law applicable to the merits of international arbitration disputes see Julian Lew / Loukas Mistelis / Stefan Kröll, Comparative International Commercial Arbitration, London et al 2001, Chapter 17. See also Article 28 UNCITRAL Model Law on International Commercial Arbitration; section 46 English Arbitration Act; Article 1496 New French Code of Civil Procedure; section 1051 German Code of Civil Procedure; Article 187 Swiss Private International Law Act.

40. See Berger, supra note 10, at 93-97, and Klaus Peter Berger, "The CENTRAL Enquiry on the Use of Transnational Law in International Contract Law and Arbitration, 15(9) Mealey's International Arbitration Report (2000).

41. See Arthur Rosett, "Unification, Harmonization, Codification, and Reform in International Commercial Law, 40 The American Journal of Comparative Law 683-697, at 684 (1992).

42. Schmitthoff, Commercial Law in a Changing Economic Climate, 2nd edition, London 1981, at 22-3.

43. See infra Chapter 2 by Gerold Herrmann and <http://www.uncitral.org> for list of conventions and model laws.

44. See infra Chapter 5 by Herbert Kronke and <http://www.unidroit.org> for list of conventions.

45. See infra Chapter 6 by Hans van Loon and <http://www.hcch.net> for list of conventions.

46. E.g. the 1980 Rome Convention on the Law to Applicable to Contractual Obligations.

47. Schmitthoff, supra note 42, at 23.

48. See infra Chapter 3 by Maria Cattaui Livanos and <http://www.iccwbo.org> for list of ICC instruments of international commercial law harmonisation.

49. For standard contract see infra Chapter 22 by Alejandro Garro and Clive M Schmitthoff, "The Unification or Harmonisation of Law By Means of Standard Contracts and General Conditions", 17 ICLQ 551 (1968) = Chia-Jui Cheng, ed., Clive M Schmitthoff's Select Essays on International Trade Law, Dordrecht et al. 1988, 188-205.

50. Grain and Feed Trade Association. See also <http://www.gafta.com/> for further information.

51. International Federation of Consulting Engineers. See also <http://www.fidic.org> for further information.

52. See, for example, infra Chapter 21 by Michael Joachim Bonell and Michael Joachim Bonell, "The UNIDROIT Principles of International Commercial Contracts Prepared by the Institute for the Unification of Private Law (UNIDROIT)", in Center for Transnational Law (ed.), Transnational Law in Commercial Legal Practice, Münster 1999, 7-44.

53. See, for example, Ole Lando, "Principles of European Contract Law in the Third Millennium", in Center for Transnational Law (ed.), Transnational Law in Commercial Legal Practice, Münster 1999, 73-84.

54. Klaus Peter Berger, "The CENTRAL-List of Principles, Rules and Standards of the Lex Mercatoria", in Center for Transnational Law (ed.), Transnational Law in Commercial Legal Practice, Münster 1999, 121-145.

55. See, for example, V.V. Veeder, "Evidential Rules in International Commercial Arbitration: From the Tower of London to the New 1999 IBA Rules", Arbitration 291-301 (November 1999).

56. See Spanogle, supra note 6, at 486-494 (1991).

57. See Roy Goode, "Reflections on the Harmonization of Commercial Law", in Ross Cranston and Roy Goode (eds.), Commercial and Consumer Law. National and International Dimensions, Oxford (Clarendon) 1993, 3-27, at 6-7.

58. For discussion of harmonising instruments see ibid, at 7-9. Similar views are expressed by Louis F. Del Duca, "Developing Transnational Harmonization Procedures for the Twenty-first Century", in: Ross Cranston and Roy Goode (eds.), Commercial and Consumer Law. National and International Dimensions, Oxford (Clarendon) 1993, 28-40. He discusses, in particular, conventions (at 31-32), model laws (at 32), guidelines (at 32), voluntary contractual applicability texts (at 32-33) and the special case of EC law (at 34-37).

59. Goode, supra note 57, at 7.

60. Roy Goode, "Usage and its Reception in Transnational Commercial Law", in Jacob S. Ziegel (ed.), New Developments in International Commercial and Consumer Law - Proceedings of the 8th Biennial Conference of the International Academy of Commercial and Consumer Law, Oxford (Hart) 1998, 3-36, at 9-28 (nature, normative effect, position in international commercial law etc).

61. Ibid, at 6.

62. See Hans van Houtte, The Law of International Trade, London (Sweet & Maxwell) 1995, paras. 1.01-1.34.

63. Please note that in this chapter the concept of soft law is different from the concept of soft law to be found in van Houtte, ibid., para. 1.13, and quite different from the term used in Harald Koch, " Private International Law: A 'Soft' Alternative to the Harmonisation of Private Law?", 3 European Review of Private Law 329-342 (1995).

64. See, for example, Article 6 of the 1980 United Nations (Vienna) Convention on Contracts for the International Sale of Goods ('CISG'): " The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions."

65. See Dicey & Morris on Conflict of Laws, 13th edition by Lawrence Collins, London (Sweet & Maxwell) 2000, 157-181; Cheshire and North's Private International Law, 13th edition by P M North and J J Fawcett, London (Butterworths) 1999, 67-98; Morris: The Conflict of Laws, 5th edition by David McClean, London (Sweet & Maxwell) 2000, 471-489; Symeon C. Symeonides / Wendy Collins Perdue / Arthur T. von Mehren, Conflict of Laws: American, Comparative, International, St. Paul, Minn. (West) 1998, 55-66; Edgar H. Ailes, "Substance and Procedure in the Conflict of Laws", 39 Michigan L. Rev. 392-418 (1941); Walter Wheeler Cook, "'Substance' and 'Procedure' in the Conflict of Laws", 42 Yale L. J. 333-358 (1941/42); Albrecht Mendelssohn Bartholdy, "Delimitation of Right and Remedy in the Cases of Conflict of Laws", 16 B.Yb.I.L. 20-41 (1935); Erwin Spiro, "Forum regit processum (Procedure is governed by the lex fori)", 18 ICLQ 949-960 (1969). See also Chapter 12 by Oskar Hartwieg.

66. The term was first used in the context of public international law in order to describe state obligations which derive from a midway between hard law (treaty or custom) and sheer political engagement, i.e. gentlemen's agreement or recommended codes of conduct. See A. Aust, "The theory and practice of informal international instrument", 35 ICLQ 787 (1986); C. Chinkin, "The challenges of soft law: development and change in international law", 38 ICLQ 850 (1989); Emmanuel Roucounas, Engagements parallèles et contradictoires, RCADI 206 (1987-VI) at 176-178. In the EU context, soft law is sometimes used to describe a non-binding instrument which may nevertheless be a guide to the way in which an institution or other agency will exercise its discretion within the framework of hard law rules. I am indebted to Marise Cremona for pointing out this aspect of EU law.

67. See for example, CISG Articles 6, 7, 8 and 9.

68. With regard to the UNIDROIT principles see infra Chapter 21 by Bonell, and Michael Joachim Bonell, "The UNIDROIT Principles of International Commercial Contracts - Nature, Purposes and First Experiences in Practice", available at <http://www.unidroit.org/english/principles/pr-exper.html>.

69. See Berger, "Einheitliche Rechtsstrukturen durch außergesetzliche Rechtsvereinheitlichung", 54 Juristen Zeitung 369-377 (1999); Oskar Hartwieg / Jens Grunert, "Bedarf und Möglichkeiten provisorischer Eilverfügungen im E-Commerce - The mareva injunction at the very edge of what is permissable", in 21 ZIP 721-732 (2000).

70. The term was introduced by Schmitthoff, supra note 47, at 24. (Note that 1st edition in 1977).

71. See the links of the web site of the European Commercial Law Unit, Centre for Commercial Law Studies, Queen Mary, University of London <http://www.ccls.edu/eclu/links.html> and the international commercial / trade law monitor web site: <http://www.lexmercatoria.net>.

72. Schmitthoff, supra note 47, at 24.

73. See <http://www.uncitral.org> and infra Chapter 2 by Gerold Herrmann.

74. See <http://www.unidroit.org> and infra Chapter 5 by Herbert Kronke.

75. See <http://www.hcch.net> and infra Chapter 6 by Hans van Loon.

76. See <http://www.wto.org>.

77. See Association of Southeast Asian Nations at <http://www.aseansec.org>.

78. See <http://europa.eu.int>. Harmonisation of private law (e.g. contract law) is only recently on the EU agenda. See e.g. new Article 65 EC and infra Chapter 4 by Stephen Weatherill.

79. See <http://embassy.org/uruguay/econ/mercosur/>.

80. See <http://www.nafta-sec-alena.org/english/nafta/>. See also infra Chapter 25 by Joe Norton.

81. See <http://www.oas.org/>.

82. See <http://www.undp.org/popin/oau/oauhome.htm>.

83. See <http://www.iccwbo.org> and infra Chapter 3 by Maria Cattaui Livanos.

84. See <http://www.ila-hq.org >.

85. See <http://www.ibanet.org>.

86. For examples see infra Chapters 2 and 3.

87. See <http://www.worldbank.org>.

88. See <http://www.ebrd.org>. See also the journal of the EBRD entitled Law in Transition.

89. See <http://www.imf.org>.

90. See Spanogle, supra note 6, at 483-486.

91. See the discussion in Goode, supra note 57, at 5-6 (selecting the field) and 9-11 (which organisation?).

92. Goode, supra note 57, at 24 and discussion in 25-27.

93. See, for example, Barry Nicholas, "The Vienna Convention on International Sales Law", 105 LQR 201 (1989); Hobhouse, "International Conventions and Commercial Law: The Pursuit of Uniformity", 106 LQR 539 (1990); Derek Wheatley, "Why I Oppose the Winds of Change", The Times, 27 March 1990; Roy Goode, "Why Compromise Makes Sense", The Times, 22 May 1990; Barry Nicholas, "The United Kingdom and the Vienna Sales Convention: Another Case of Splendid Isolation?", Saggi, conferenze e seminari n° 9, Centro di studi e ricerche di diritto comparato e straniero, Rome 1993 = <http://www.cnr.it/CRDCS/nicholas.html>.

94. See, for example, Peter Winship, "Formation of International Sales Contracts under the 1980 Vienna Convention", 17 International Lawyer 1-14 (1983); Alejandro Garro, "Reconciliation of Legal Traditions in the UN Convention on Contracts for the International Sale of Goods", 23 International Lawyer 443-483 (1989).

95. See supra note 18.

96. See, for example, Jan Kropholler, Internationales Einheitsrecht, Tübingen (Mohr) 1975, at 167 et seq.; Christian von Bar, Internationales Privatrecht, Vol. I, Munich (Beck) 1987, paras. 83-99, 65-74, 66; Henri Batiffol / Paul Lagarde, Droit International Privé, Vol. I, 8th edition, Paris 1993, paras. 30-35 and 343; 43-50 and 561.

97. See for balanced accounts of harmonisation: Rosett, supra note 41, 683-697; Goode, supra note 57, at 24-27; Spanogle, supra note 6, at 510-516. For a critical and stimulating account of harmonization see Uriel Procaccia, "The Case Against Lex Mercatoria", in Jacob S. Ziegel (ed.), New Developments in International Commercial Law, Oxford (Hart) 1998, 87-95.

98. See the fascinating historical note Gary N. Horlick, "Sovereignty and International Trade Regulation", 20 Can.-U.S. L.J. 57-65 (1994). Discussing NAFTA and looking at historical treaties such as the Westphalia Treaty of 1648 he points outs that "when you look into the future, the question is not whether there will be more of this international "cessation of sovereignty", rather the question is how." Id. at 65. He further quotes Lord Wilbeforce's observation in the English Westinghouse case in 1978, in connection with the traditional (since 1945 in Alcoa) U.S. attempts to extend its sovereignty in antitrust areas, that frequently the policies being attacked are precisely the ones the host country is determined to defend.

99. See the stimulating essay by Paul B. Stephan, "The New International Law - Legitimacy, Accountability, Authority, and Freedom in the New Global Order", 70 U. Colo. L.Rev. 1555-1587 (1999).

100. Mathias Reimann, "Stepping Out of the European Shadow: Why Comparative Law in the United States Must Develop its Own Agenda", 46 Am. J. Comp. L. 637 (1998). Mathias Reimann, "The End of Comparative Law as an Autonomous Subject", 11 Tul. Eur. &. Civ. L. F. 49 (1996).

101. See Aseem Prakash, Book Review, 4 Ind. J. Global Legal Stud. 575-591 at 575 (1997).

102. Stephan, supra note 99, at 1555. See also supra note 6.

103. Ibid. at 1563. See also Spanogle and Steinhardt, supra note 6.

104. See, for example, Gesa Baron, "Do the UNIDROIT Principles Form a New Lex Mercatoria?" 15 Arb. Int. 115 (1999) = <http://www.cisg.law.pace.edu/biblio/baron.html>; Klaus Peter Berger, The Creeping Codification of Lex mercatoria (Kluwer) 1999; Berger, supra note 10; Blaurock, supra note 36; Michael Joachim Bonell, "Das autonome Recht des Welthandels", 42 RabelsZ 485 (1978); Patrick J. Borchers, "The Triumph of Substance over Rules of Choice in International Commercial Transactions: From the Modern Lex Mercatoria to Modern Standards", in Raish / Schaffer (eds.), Introduction to Transnational Legal Transactions, New York et al. (Oceana) 1995, 139-158; Thomas Carbonneau (ed), Lex Mercatoria and Arbitration: a Discussion of the New Law Merchant revised edition 1998 (Kluwer and Juris Publishing); Felix Dasser, Internationale Schiedsgerichtsbarkeit und lex mercatoria, Zürich, 1989; Filip De Ly, International Business Law and Lex Mercatoria (1992); Freeman, "Lex mercatoria: its emergence and acceptance as a legal basis for the resolution of international disputes", IX ADRLJ (1997) 289-300; Berthold Goldman "The applicable law: general principles of law", in Julian Lew (ed.), Contemporary Problems in International Arbitration, London (Kluwer) 1986, 113; Berthold Goldman, "Le lex mercatoria dans les contrats et l'arbitrage internationaux; realités et perspectives", Clunet 1979, 475; Berthold Goldman, "Lex Mercatoria", 3 Forum Internationale 194 (1983); Aleksandar Goldstájn, "The New Law Merchant, J.B.L. 1961, 11; Aleksandar Goldstájn, "The New Law Merchant Reconsidered", in Law and International Trade, Festschrift für Clive M Schmitthoff, F. Fabricius (ed), 1973, 171; Aleksandar Goldstájn, "Reflections on the Structure of the Modern International Trade", in Petar Šarevi (ed.), International Contracts and Conflict of Laws, London 1990, 14-35; Goode, supra note 60; Martin Hunter, "Publication of Arbitration Awards and Lex Mercatoria", 54 Arbitration 55 (1988); Ole Lando, "The Lex Mercatoria in International Commercial Arbitration", 34 ICLQ 747 (1985); Eugen Langen, Transnational Commercial Law, 1973; Andreas F. Lowenfeld, "Lex Mercatoria: An Arbitrator's View" 6 Arb. Int.133 (1990); Abdul Maniruzzaman, "The Lex Mercatoria and International Contracts: A Challenge for International Commercial Arbitration", 14 Am. U. Int'l L. Rev. 657 (1999); Pierre Mayer, "Mandatory rules of laws in international arbitration", 2 Arb. Int. 274 (1986); Meyer, supra note 16; Michael Mustill, "Contemporary Problems in International Commercial Arbitration: A Response", 17 Int'l Bus Law 161 (1989); Lord Mustill, "The New Lex Mercatoria - the First Twenty-five Years" in Bos & Brownlie (ed.), Liber Amicorum for Lord Wilberforce, Oxford 1987, 149-183 and 2 Arb. Int. 86 (1988); Luke Nottage, "The Vicissitudes of Transnational Commercial Arbitration and the Lex Mercatoria: A View from the Periphery", 16 Arb. Int. 53-78 (2000); Jan Paulsson, "Le lex mercatoria dans l'arbitrage CCI", RevA.1990 55; David Rivkin, "Enforceability of Arbitral Awards based on Lex Mercatoria", 9 Arb. Int 67 (1993); Clive M Schmitthoff, "International Trade Law and Private International Law", in: Vom deutschen zum europäischen Recht, Festschrift für Hans Dölle II, 1963, 264; Clive M. Schmitthoff, "Das neue Recht des Welthandels, 28 RabelsZ 47 (1964); Rolf A. Schütze, "The Precedential Effect of Arbitration Decisions", 11 J. Int. Arb. 69 (1994); Ursula Stein, Lex mercatoria - Realität und Theorie, Frankfurt am Main 1995; Christoph W. O. Stoecker, "The Lex Mercatoria": To What Extent does it Exist?" 7 J. Int. Arb 101 (1990); Vanessa L. D. Wilkinson "The New Lex Mercatoria - Reality or Academic Fantasy?" 12 J. Int. Arb. 103 (1995).

105. See Spanogle, supra note 6, at 520.

106. See supra notes 52-55.

107. See Lew, supra note 8, paras 366-372, at 465-474; Berger, supra note 10, passim; Lew/Mistelis/Kröll, supra note 8, Chapter 17. See, for example, Paris Chamber of Arbitration Award in case no. 9246 of 8 March 1996, Austrian agent v Egyptian principal, ICCA YBCA XXII, 1997, 28-34; ICC Award no 5485, 1987, Bermudian company v Spanish company, YBCA XIV, 1989, 156; ICC Award no 3540, 1980, French contractor v Yugoslav sub-contractor, YBCA VII, 1982, 124; ICC Award no 2321, 1974, Two Israeli companies v The Government of an African state, YBCA I, 1976, 133; ICSID Award in case no ARB/81/1, Amco Asia Corp. v Republic of Indonesia, 21 ILM 1022, 134 (1985); Sapphire Award, ILR 1967, at 136; Interim Awards and Final Award of 1983, 1984 and 1986 in ICC case no 4145, Establishment of Middle East country v South Asian construction company, 112 Clunet 985 (1985), YBCA XII, 1987, 97-110; Iran-US Claims Tribunal Award in Case No. 59 (191-59-1) of 25 September 1985, Questech, Inc. v The Ministry of National Defence of the Islamic Republic of Iran, YBCA XI, 1986, 283-289; Ad hoc Award of July 6 1983, Hungarian State enterprise v Jugoslavenski naftovod (Yugoslav Crude Oil Pipeline), YBCA IX, 1984, 69-70

108. See Borchers, supra note 104 and Francis A. Gabor, "Stepchild of the New Lex Mercatoria: Private International Law form the United States Perspective", 8 Nw. J. Int'l L. & Bus. 538-560 (1988); Willis Reese, "Commentary on Professor Gabor's Stepchild of the New Lex Mercatoria", 8 Nw. J. Int'l L. & Bus. 570-573 (1988).

109. See supra note 65.

110. See supra note 18.

111. See Borchers, supra note 104, at 141.

112. See Borchers, supra note 104, at 156.

113. See Schmitthoff, supra note 28, at 29-31.

114. See Schmitthoff, supra note 28, at 31.


Pace Law School Institute of International Commercial Law - Last updated February 10, 2004
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