Professor Dr. Eric E. Bergsten, Vienna [*]
I am honored that the publisher of Internationales Handelsrecht has dedicated this issue of the journal to the Willem C. Vis International Commercial Arbitration Moot. It is a form of recognition that seldom is given to what is, after all, a student event. It is also a recognition that the world of the law student and the world of the practicing lawyer are not as separated as they have often been thought to be.
The Moot in turn is dedicated to the proposition that learning, and learning about international commercial law, can be fun. If any readers of these lines have doubts about that proposition, they should turn to the comment in this issue by Professor Harry Flechtner of the University of Pittsburgh. In his opening line he says "As readers of IHR need hardly be told, no topic is more associated with pure entertainment and lighthearted enjoyment than international commercial law." Professor Flechtner may be exaggerating slightly by saying that "no topic" is more associated with pure entertainment and light-hearted enjoyment than international commercial law, though he went far to quell any such doubts among the thousand or so participants in the opening of the Thirteenth Vis Moot in the Konzerthaus in Vienna last April. When he sang the CISG Song the audience rose to its feet in applause. When you read the text and the footnotes to it, you will appreciate both the serious description of the CISG it contains and the humor with which it is presented. When you listen to it, as you should, you will see why he received an ovation that is seldom heard in that important temple of music. His encore of the Mootie Blues was as enthusiastically received. A new career had been launched.
The Moot was designed to be fun for the students and it has turned out to be fun as well for the arbitrators who judge their performance. To a certain extent that has been achieved by the social events during the week of the oral arguments. The Moot has been described as a party. However, as all practitioners in the field are aware, the social events have a serious purpose as well. Social contact with lawyers from all parts of the world is the lubrication that makes international commercial law function smoothly.
For many of the students it is their first exposure to their future colleagues from other countries. The introduction at the Moot is easy. As law students, they have a similar background and similar expectations for the future. As participants in the Moot they have spent the previous six months researching the law and the facts surrounding the same fictitious dispute in regard to an international contract of sale. They have all encountered international commercial arbitration. For most of them it was a first time encounter. Indeed, for some of them it was the first time they had even heard the words. They have worked hard during those six months. They have all written a memorandum supporting the position of the claimant and later a memorandum for respondent. They have also practiced arguing as counsel for the parties. In Vienna they are called on to present their arguments before arbitral tribunals composed of lawyers and law professors from other countries with a different legal education and experience. The students have much to share and many of them make friends that last long after the Moot is over.
If all the fun at the Moot arose out of the social contacts that are made, it would not justify dedicating this issue of IHR to it. The fun also arises out of the fact that the students are dealing with a realistic business and legal situation involving products they may never have heard of before or situations they had never previously considered. To take the examples of the current and two previous Moots, everyone has eaten chocolate, but how many law students had confronted the legal consequences that might arise out of the wide swings in the price of cocoa beans several years ago, in large part because of political unrest in the Cóte d'lvoire, which is the largest source of cocoa beans. How many had ever heard of flexoprinters used for, among other things, printing on extra-thin aluminum foil candy wrappings? This year we are considering whether supplying a primary distribution fuse board with JS type fuses in place of the JP type fuses of the same rating called for in the contract constitutes a breach of contract. There is also the question as to whether acquiescence by an employee of the buyer in the change of specifications during a telephone conversation with the seller has any legal effect in the face of a no-oral-modification clause in the contract. These kinds of questions are the daily work of the international commercial lawyer, but they are new and exciting discoveries for law students. The Moot takes them far from the doctrinal discussions of the lecture hall.
That which makes the Moot fun for the students makes the practice of international commercial law interesting for the practitioner. There are always new things to be learned inside the law and outside of it. That is true of other areas of the law as well, but few of them can lay as strong a claim as can international commercial law.
There are other aspects of international commercial law that add to its appeal. It is interesting to be working with lawyers from other countries. They bring other experiences and ways of analyzing problems. In my experience lawyers engaged in international commercial law tend to be among the most cosmopolitan of people. It makes them not only successful practitioners, but interesting people as well.
As a sometime professor of law and a sometime international civil servant engaged in the international unification of commercial law, I find the doctrinal developments of the past fifty [page 226] years to be fascinating. Those developments are particularly marked in the two areas in which the Moot and IHR specialize, the international sale of goods and international commercial arbitration. Fifty years ago there was no completed text for the international unification of the law of sales. The work begun at UNIDROIT in 1929 on a uniform law had been interrupted by the war and taken up again only in 1951. It was not until 1964 that it was adopted at diplomatic conference in The Hague. It took another eight years before it and its companion uniform law on formation of contracts in the international sale of goods came into force in 1972, but neither achieved widespread adoption. By that time UNCITRAL had been organized and had begun its review of the two texts to determine what changes would be necessary to make them generally acceptable. That work culminated in a diplomatic conference in 1980 and the resulting CISG came into force on 1 January 1988. As of the date of writing 67 States are party to it. By the standards of international unification of private law, that is rapid progress.
It was always understood that adoption of the CISG and adherence to it by States would not by itself be sufficient to bring about unification of the law in practice. The national courts would have to accept "the need to promote uniformity in its application", as called for by CISG Article 7(1). Before they could carry out that obligation, they would have to pay attention to the decisions of courts in other countries as well as to the doctrinal writing, which in turn required that they must know of their existence. Moreover, those decisions must be read, even if written in a foreign language, and the procedural circumstances and other legal factors that might have influenced the foreign decision must be understood. Finally, and most importantly, the courts must be willing to put aside the law they have been taught and that they have applied in similar domestic cases. That is not easy. In every one of those 67 States the law of sale of goods is a prominent part of the law of contractual obligations. The courts need a great deal of assistance to fulfill their obligations under the CISG.
Fortunately, they are receiving that assistance. UNCITRAL has led the way with its CLOUT extracts of cases rendered under the CISG. The UNCITRAL Secretariat has prepared a Draft Digest of the decisions reported in CLOUT, and the Digest is to be kept up to date. The CISG database at Pace Law School has collected references to all known court and arbitral decisions applying the CISG and to all known doctrinal writing about it. Much of the material is in full text, including English language translations of many of the non-English language decisions. Court decisions in the original non-English languages are generally available on The Autonomous Network of CISG Websites. The CISG-Advisory Council composed of leading scholars from a range of countries publishes opinions on matters in the CISG that are apt to lead to divergent opinions. What cannot be overlooked are the specialized journals, of which IHR is an important one, that bring the developments throughout the world to the attention of practitioners. To cite only articles appearing in this issue of IHR, the decisions of an American court on the interpretation of the CISG are of as much interest to the readers of a German published journal as are the means by which the CISG was implemented in Norway or the need to contract only in writing with parties from Russia in spite of the provisions of CISG article 11 doing away with that requirement.
The developments in the field of international commercial arbitration in the past fifty years are, if anything, even more spectacular. It was less than fifty years ago that the New York Convention was adopted at diplomatic conference in 1958, thereby remedying the most glaring deficiencies in the 1923 Protocol on Arbitration Clauses and the 1927 Convention for the Execution of Foreign Arbitral Awards. The spectacular number of 139 States are currently party to it. What is even more striking to me is that there has hardly been a year in which there has not been at least one State adhering to the Convention.
There has been a steady progression of international instruments promoting arbitration of economic activities. The most prominent are the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (Washington Convention 1965), The UNCITRAL Arbitration Rules (1976) and the UNCITRAL Model Law on International Commercial Arbitration (1985 with 2006 amendments). These and other instruments have been widely adopted and used in practice to the extent that it is accurate to say that arbitration is the preferred method of settlement of international economic disputes.
The intellectually exciting aspect of international arbitration is that it is a work in progress. The harmonization of the different concepts of the nature of arbitration, whether contractual or jurisdictional, and of the different procedures flowing from the analogies to judicial procedures makes for lively debate. The adoption by UNCITRAL this year of the first amendments to the Model Law regarding an elaborate structure for interim measures is but one manifestation of the on-going debates. The explosion of investment arbitrations using the UNCITRAL Arbitration Rules, in addition to those in ICSID, has subjected them to the regime devised for ordinary commercial arbitration. Those arbitrations have raised significant issues of confidentiality, third party involvement by way of amicus briefs and the role of public policy, to mention the most prominent, that may have important long term effects for international commercial arbitration itself.
This brings us back to the Moot. It was proposed at the UNCITRAL Congress on International Trade Law in 1992 as a means to promote awareness of the work of UNCITRAL in the unification and harmonization of international trade law, and especially of the CISG and arbitration, among law students. The dedication of this issue of IHR to the Moot is one indication that it has fulfilled that mission. [page 227]
* Professor of law emeritus, Pace Law School; Secretary, United Nations Commission on International Trade Law (1985-1991); Director, Willem C. Vis International Commercial Arbitration Moot.