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A recent conference in 2009 at Aarhus University, Denmark considered the following important issue in international commercial law: UNIFACTION AND HARMONIZATION OF INTERNATIONAL COMMERCIAL LAW — INTERACTION OR DE-HARMONIZATION? The unification and har Essay Example

  • Category:
    Law
  • Document type:
    Research Paper
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    Undergraduate
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Unification and Harmonization of International Commercial Law – Interaction or De-harmonization

Date Assignment is due:

ABSTRACT

The substantial transformation in the development of the world has called for the adoption by countries of standard forms of business and commercial practice through unification. The various attempts directed towards the processes of unification have, at best been clumsy. This is because the processes have been fraught with several challenges that range from international political nuances to the more subtle concepts like the sensitive state sovereignty. With the need for unification and harmonization of international commercial practices even stronger now than ever before, it becomes imperative that the reasons that have derailed this process be examined. This research paper considers the nuances respecting unification and harmonization of international commercial practice.

Key words: UNCITRAL, model laws, sovereignty, unification, harmonization

Introduction

Unification within the framework of international commercial practice refers to the act of joining several countries to make a single group with respect to matters relating to commercial practice (Bullon 2003, p. 1809). Variously, it has also been defined as the process in which several different legal provisions are supplanted by a single provision or system (Kamba as cited by Osborne 2006, p. 592).

Within the same context, harmonization is the making of two or more sets of laws from various jurisdictions the same (ibid, p. 742). It has also been defined by other authors as the process through which the impacts of a given transaction in one legal system are brought to as close as possible to the effects of similar transactions under legal provisions of other countries (Goldring as cited by Osborne 2006 at 473). The processes of unification and harmonization within the practice of international commercial transactions thus involve the setting in motion of mechanisms that ensure near uniform commercial practice among the various countries of the world.

The processes of unification and harmonization of international commercial practice have traditionally been entrusted to one body; the United Nations Commission on International Trade Law, UNCITRAL. This Commission was established through a United Nations General Assembly Resolution in 1966 (Resolution 2205, December 17). The express purpose for which UNCITRAL was established was for the promotion of “the progressive harmonization and unification of the law of international trade” (UNCITRAL’s).

Although at its inception UNCITRAL’s mission was, as stated above, promoting the progressive harmonization and the unification of the laws respecting international trade, this mission has somewhat been redefined. This is because today, the Commission indicates that its mission as being the “modernization and harmonization” of trade law within the meaning of international commercial transactions (Welcome to the UNCITRAL).

The question that one is wont to ask why there was the slight shift in the mission of the Commission from being that for the promotion of progressive harmonization and unification to being one that is simply aimed at modernization and harmonization. Does the slight shift suggest that unification has become mission impossible or simply untenable?

Present modes of unification and harmonization

Ever since the world went into the harmonization and unification mode, there are two main modes that have been utilized to achieve this mission. The two modes are through the development of conventions and model laws. The route through the formulation of conventions involves using multilateral treaties through which countries accede to become members of the international commercial grouping (Garner 2004, p. 355).

The main advantage that proponents of harmonization through the route of conventions have touted is that of standardization of international commercial practices. This is because, unlike the case with model laws which attempt to provide for the different specific needs of each country through waivers, conventions stipulate uniform standards of practice for all the member countries (Den Bossche 2009, p. 3). This, in turn, ensures that all the member states are subject to the same set of commercial practice and standards. This thus ensures the states’ commercial engagements are uniform hence enhancing better commercial practices (Ogola 2005, p. 13).

Besides the uniformity in standards that conventions offer, they also are a more favorable form of harmonization for a number of states because for state parties to accede, they do not have to change any part of the convention so as to adapt to their internal political differences. This coupled with the fact that the conditions of formulation of convention require no sum bargaining give the conventions a higher chance of success in circumstances where there is required agreement across substantially different legal families and stages of economic development (Block-Lieb & Halliday 2007, p. 3 & Castellani 2008, p. 116).

The use of Model laws on the other hand, involves the use of laws which are in the form of legislative texts; which texts are then recommended by UNCITRAL for enactment. The model laws are more favoured because they greatly relax some of the strictures with which the conventions are famed. This is because they strive to be responsive to the specific and particular needs for each state (Block-Lieb and Halliday 2007, p. 2).

The model laws usually attempts to co-opt and become responsive to the specific and particular commercial needs of each of the states by implicitly permitting each of the states to leave out or change, through any form of modification, some of its provisions. The permission is simply by default, given that international model laws are only in a position to recommend for their provisions cannot be prescriptive in nature. This radically contrasts with the case for accession to a convention where waiver is not permissible through the signing of only some of its portions.

The specific interests that UNCITRAL grants to states through the waivers by model laws has been viewed as a drawback to the drive towards international harmonization of commercial practice. However, many authorities have posited that the model laws offer an even stronger route to harmonization than even the conventions. Some authors point out that the incremental nature through which the UNCITRAL model laws operate offers a higher threshold in the standards of international commercial practice than would ever be achieved by the conventions (D’Arcy 2000, p. 689 & Pottow 2005, p.935).

Harmonization and unification vis-à-vis state autonomy

Within the realm of international law, state party autonomy is usually understood within the framework of the nuances of state sovereignty. State sovereignty refers to the supreme dominion or authority held by a politically independent state which makes it complete by itself without being just a component of a larger whole (Garner 2004, p. 1431). State sovereignty grants states sovereign right, i.e. that special right which enables the state to carry out its official functions directed towards the benefit of the members of its public (ibid).

The immediate question that should then be asked is how conventions and the other principles of harmonization are wont to interact with sovereignty of state parties. Firstly, and very directly, is that state party engagements into commercial transactions arise out of the special right held by the state which enable it to act for and on behalf of its members of the public towards their benefit; sovereign right. Thus, international commercial transactions by states arise from the principles of sovereignty of the various states since states engage and commit their people through either the conventions or model laws through their governments, the principle organs through which states act (Woolsey 1878, p. 35).

Besides, the processes of harmonization and unification also impact on state party autonomy directly in another way. This is for instance with respect to the fact that by state parties adoption of conventions through accession, this is a tacit interference with the state sovereignty, more specifically the legislative sovereignty. This is because for most, if not all states, it is the exclusive jurisdiction of their legislatures to make laws. The process of accession to laws not emanating from a state’s legislature thus defeats the state’s (legislative) sovereignty. This is because the accession kind of short-circuits its legislative sovereignty (Gardiner 2003, p. 170).

However, aside from this, there are also numerous other instances when harmonization and unification processes impact rather indirectly on the state parties’ autonomies. Although not exclusively so, more often than not, these instances arise out of requirements of legislative enactments by state parties. For instance, the harmonization principle of modernization, has been pointed out, usurps a state party’s legislative sovereignty (Block-Lieb and Halliday 2007, p. 3).

The usurpation of the legislative sovereignty arises, authors argue, in the context that it makes the UNCITRAL purport to speak very authoritatively to state parties’ legislatures both upon the need as well as the content of the laws that the legislatures are supposed to enact. In their view, therefore, the authors have posited that the term modernization has been abused and used euphemistically as a way to arm-twist weak states to put in place laws that conform to the whims of the strong states’ (read the West) economic interests (ibid).

From this point of view therefore, the interference with a state party’s autonomy extends even beyond the short-circuiting of sovereignty for its legislature alone. Rather, it extends to a kind of direct interference with a state party’s priorities. This is within the background of the fact that such state parties are expected to act largely at the behest of the interests of the strong states (ibid).

Benefits of formal harmonization

Formal harmonization, as opposed to party autonomy and contract practice, offers a number of benefits. A number of such benefits are to be enumerated as hereunder.

The first benefit that comes with the formal harmonization of international commercial practice is that the same establishes certainty as to the laws applicable within an international commercial transaction. This merit is to be appreciated from the point of view that in every international commercial transaction, there are at least two legal systems that come into play. The two systems are the system within the buyer’s jurisdiction, as well as that of the seller. Other than these two, there may be some other legal systems at play, especially in the circumstances such as when either the buyer’s or the seller’s state (or even both states) has become party to another international convention.

In such circumstances, any commercial transaction may be rife with a lot of uncertainty as to which of the legal systems at play will be affecting the transaction. In order to determine which of the several laws would apply to every particular transaction therefore, the parties will have to apply the rules on private international law (conflict of laws) on contract practice.

The process for the determination of the applicable law using conflict of laws principles in a contractual engagement is one that is not very direct since a number of laws may be used. For instance under Common Law, reliance was on two methods. The first of these was the lex loci contractus while the second being lex loci solutionis. In the former principle, the applicable law to an international commercial contract would be the law of the jurisdiction where the contract was made (Clarkson and Hill 1997, p. 31). On the other hand, under the latter principle, the applicable law is to be taken as the law of the jurisdiction where the contract is to be performed (ibid).

Another test under the Common Law, which can be used to determine an applicable law to an international commercial contract, is the test of the law with which the contract has its closest and most real connection (Mount Albert Borough Council v Australasian Temperance and General Assurance Society; see alsoBonython v Commonwealth of Australia).1 In order to determine the law with which the contract in question has its closest and most real connection, regard is to be had to all such factors as the place of contracting, the jurisdiction of performance of the contract, the place where the business or the parties reside(s), as well as the subject matter of the contract in place.

These tests, as guidelines towards the determination of the applicable law in an international commercial contract may be blurred and confusing. Thus, in order to avoid the scenario in which international commercial transactions have to depend upon these kinds of exigencies, it is only proper that states engage into formal harmonization so as to save their businesspersons the unnecessary headache (Gichangi 2007, p. 313).

The second reason as to why there should be push towards formalized harmonization is out of the need to avoid the application of the provisions of the formally harmonized laws indirectly. This is because there are certain circumstances in which the harmonized international law provisions may apply to certain contracts even if the affected party is not a national of a contracting party. This is in such situations such as when the rules of private international law lead to the application of the law of a contracting state (Richardson and Garnett n. d., p. 3).

A most conspicuous harmonized international legal instrument which is in this category is the Convention for the International Sale of Goods. For instance, Article 1(b) of the CISG stipulates that the Convention is to apply to contracts between parties whose places of business are in different states when the rules of private international law lead to the application of the law of a Contracting State. In order that states protect their citizens against them being affected by the provisions of international legal instruments such as the CISG to which their own countries have neither acceded to nor ratified, states thus need to strive to formally harmonize international commercial practices (Patterson 1986, p. 278).

A third benefit of formal push for harmonization is the need for countries which do a lot of business, between themselves directly or indirectly, need to belong to common international conventions. This is for the need to have the business interests of their people to be sufficiently covered by the similar legal system. For instance, in an argument to have the Republic of Kenya accede to CISG, proponents have argued that the country’s main trade partners within Europe and the Americas, except The United Kingdom, have all ratified the Convention (Ministry of Planning and Development, Central Bureau of Statistics, 2006).

Consequently, to enable the Kenyan businesspersons to engage in business within uniform international framework with their partners in those respective trading partners, Kenya needs to accede to the Convention as well. Thus, in order for countries to guard against the likelihood in which their citizens may become subjected to either the different internal legislations of the countries with which they trade or the provisions of the various conventions that those countries may have acceded to, it is of utmost importance that various countries formally harmonize and unify international commercial laws and practices (Gichangi 2007, p. 315).

A fourth benefit that formal harmonization, especially through UN Conventions is wont to bring to countries is the peaceful coexistence between the states. This is because, formal harmonization enhance trade between the various countries since trading countries, as of necessity, must strive to create and maintain peace among themselves (de Montesquieu in Den Bossche 2009, p. 19).

According to authorities, an emerging benefit from the phenomenon of commercial globalization is that there is an enhanced peace between the countries which are involved in the commercial activities. As has been pointed out above, Montesquieu and like minded proponents, argue that political hostility is an eventuality and a luxury that trading partners cannot contemplate, leave alone engage in. in fact, even the United Nations, has been alive to this fact and reiterated during its Resolutions that bore UNCITRAL, that the Commission was to enhance its global role of maintenance of world peace and security, development of friendly relations among nations, achieving of international relations (Article 1, UN Charter).

Unification and harmonization through party autonomy and contract practice

Just like formal harmonization, harmonization and unification through party autonomy and contract practice has its attendant resultant benefits. In fact, a number of the advantages for this kind of harmonization and unification are the flipside disadvantages formal harmonization. Some of the poignant advantages of this form of harmonization include;

A primary benefit of the harmonization and unification through party autonomy and contract practice is the fact that this mode preserves the state sovereignty. This is because, in the former kind of harmonization, there is a level of ground that each of the state parties must cede their sovereignty by giving up some of their sovereign rights to the international organizations. For instance, like was previously presented herein, the legislatures of state parties have had to give up some of their legislative roles to the international bodies. The fact of the ceding of legislative roles, an exclusive jurisdiction of legislatures the world over, serves to undermine a state’s sovereignty. This kind of interference is not to be found in the latter type of harmonization (Chan 2007, p. 2).

Besides the infringement of state sovereignty through the limitations cast upon the legislatures’ authority to enact legislations, it has also been pointed out before that the principle of modernization has been used euphemistically to describe the process of legal adaptation. The push by strong countries, usually the West, is being used as a premise upon which the said countries shove their own favorite policies down the throats of weak states, usually the developing ones (Block-Lieb & Halliday 2007, p. 3).

As can be seen, harmonization and unification though party autonomy and contract practice does not impinge upon the developing countries’ sovereignty through this the need for “adaptation” through modernization. Instead, each of the countries engaged in to a commercial transaction are to retain their laws. The applicable laws to the contracts between them are to be those laws that are derived through the rules of private international law respecting contracts.

Levels of interaction and competition of the informal and formal modes of unification and harmonization

Both the formal harmonization and the harmonization out of party autonomy and contract practice are exclusive. This is because in the course of various international commercial transactions, these forms of harmonization do interact considerably. The extent of interactions between the two is largely in a complementary manner with the informal kind of harmonization acting as gap filler to the formal harmonization.

A case in point is the Convention on International Sale of Goods, CISG. This Convention stipulates within Article 1(2) that its provisions apply to transactions between parties in different jurisdictions where the rules of private international law lead to its application. Thus, it can be seen how the rules of private international law, themselves being informal types of harmonization, complement and dovetail with CISG, itself a formal harmonization (Kastely 1988, p. 580).

However, even as they interact, the two kinds of harmonization do also compete considerably. The nature of their level of interaction however needs to be distinguished from their competition. Their level and extent of interaction, as has been pointed out, usually arise in circumstances in which the two have to co-exist within two legal jurisdictions where one of the jurisdictions has ratified, or acceded to an international instrument (convention) while the other has not acceded or ratified (Shackelford 2006, p. 899 & D’).

In the case for competition however, this arises in situations where the two are to be within the same legal jurisdiction. Under the same legal jurisdiction, the two can only be mutually dependent. Consequently, one can only operate exclusive of the other one. Informal type of harmonization is only to apply to international commercial transactions when there is no formal harmonized legal regime. The corollary of this is that the moment when a formally harmonized regime becomes available, the possible operation of the informal harmonization must extinguish unless circumstances are to arise in which their application are to be permitted (Stephan 1999 p. 2).

Preferred method of harmonization

Although it is to be pointed out from the outset of this subsection that there may just not be the best method for harmonization, it is however possible to settle upon certain better ways to do handle harmonization. This statement is made on the strength of the background of the history of the process of development and establishment of the CISG through the initiatives of the International Institute for the Unification of Private Law, UNIDROIT.

From the several efforts and initiatives that UNIDROIT invested in the process, the same yielded two conventions, namely; the Uniform Law of International Sales (ULIS) and the Uniform Law on the Formation of Contracts for the International Sale of Goods (ULFIS). These two conventions were adopted in 1964 during The Hague Conference (Gichangi 2007, p. 305). The entire process had been assigned to a few representative countries most of whom were from Western Europe (Alshehri & Drew 2010, p. 1053).

Until the year 2007, only nine states had acceded to the two conventions. This certainly is a very slow rate by all standards. Part of the reasons as to why this rate of accession has been too low was identified as the non representative nature of the process where only a few Western European countries were picked to spearhead this all important process. The consequence was that other countries that felt that their interests were not adequately represented chose not to either ratify or accede to the two conventions (ibid).

The need for adequate state representation in the processes towards harmonization can best be illustrated through the efforts of UNCITRAL. This is because unlike was the case with UNIDROIT, UNCITRAL established a large Working Group consisting of several countries which represented the various social, political and economic interests of the world then. Consequently, the resultant convention, CISG has since been acceded to by seventy two countries todate; within duration of just thirty years (PLSIICL, 2011). This is an impressive record, as compared to those for ULIS and ULFIS.

Conclusion

The processes involving unification and harmonization of international commercial transactions are not only very important, but also crucial especially within the present day nature of world globalization. This is more so when considered from the point of view of the fact that the world has moved largely to the domain of e-commerce. The fact of globalization requires that states become compliant and compatible with each other’s trade and commercial practice. It is thus imperative that countries, as much as possible, states should strive to attain formal harmonization and unification. However, these processes of harmonization and unification must not be used as a pretext to undermine the developing countries’ sovereignty. In the circumstances that formal harmonization and unification cannot guarantee the developing countries’ sovereignty, then in such circumstances, it may be advisable that states opt to use the informal kinds of harmonization and unification.

Lastly, it is to be pointed out that the idea of incremental harmonization as presented by model laws may best be suited to the achievement of harmonization and unification. This is especially in light of the fact that it accords each country the opportunity to adopt only portions of the model laws that are relevant and appropriate to its circumstances.

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