REVISITING THE AUTONOMOUS CONTRACT (DRAFT 0.90 - 2000.08.27 ;)
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TRANSNATIONAL CONTRACT "LAW", TRENDS AND SUPPORTIVE STRUCTURES
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© Ralph Amissah*
1. REINFORCING TRENDS: BORDERLESS TECHNOLOGIES, GLOBAL ECONOMY, TRANSNATIONAL
LEGAL SOLUTIONS?
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Revisiting the Autonomous Contract[^1]
Globalisation is to be observed as a trend intrinsic to the world economy.[^2]
Rudimentary economics explains this runaway process, as being driven by
competition within the business community to achieve efficient production, and
to reach and extend available markets.[^3] Technological advancement
particularly in transport and communications has historically played a
fundamental role in the furtherance of international commerce, with the Net,
technology's latest spatio-temporally transforming offering, linchpin of the
"new-economy", extending exponentially the global reach of the business
community. The Net covers much of the essence of international commerce
providing an instantaneous, low cost, convergent, global and borderless:
information centre, marketplace and channel for communications, payments and
the delivery of services and intellectual property. The sale of goods, however,
involves the separate element of their physical delivery. The Net has raised a
plethora of questions and has frequently offered solutions. The increased
transparency of borders arising from the Net's ubiquitous nature results in an
increased demand for the transparency of operation. As economic activities
become increasingly global, to reduce transaction costs, there is a strong
incentive for the "law" that provides for them, to do so in a similar
dimension. The appeal of transnational legal solutions lies in the potential
reduction in complexity, more widely dispersed expertise, and resulting
increased transaction efficiency. The Net reflexively offers possibilities for
the development of transnational legal solutions, having in a similar vein
transformed the possibilities for the promulgation of texts, the sharing of
ideas and collaborative ventures. There are however, likely to be tensions
within the legal community protecting entrenched practices against that which
is new, (both in law and technology) and the business community's goal to
reduce transaction costs.
Within commercial law an analysis of law and economics may assist in developing
a better understanding of the relationship between commercial law and the
commercial sector it serves.[^4] "...[T]he importance of the interrelations
between law and economics can be seen in the twin facts that legal change is
often a function of economic ideas and conditions, which necessitate and/or
generate demands for legal change, and that economic change is often governed
by legal change."[^5] In doing so, however, it is important to be aware that
there are several competing schools of law and economics, with different
perspectives, levels of abstraction, and analytical consequences of and for the
world that they model.[^6]
Where there is rapid interrelated structural change with resulting new
features, rather than concentrate on traditionally established tectonic plates
of a discipline, it is necessary to understand underlying currents and concepts
at their intersections, (rather than expositions of history~e), is the key to
commencing meaningful discussions and developing solutions for the resulting
issues.[^7] Interrelated developments are more meaningfully understood through
interdisciplinary study, as this instance suggests, of the law,
commerce/economics, and technology nexus. In advocating this approach, we
should also pay heed to the realisation in the sciences, of the limits of
reductionism in the study of complex systems, as such systems feature emergent
properties that are not evident if broken down into their constituent parts.
System complexity exceeds sub-system complexity; consequently, the relevant
unit for understanding the systems function is the system, not its parts.[^8]
Simplistic dogma should be abandoned for a contextual approach.
2. COMMON PROPERTY - ADVOCATING A COMMON COMMERCIAL HIGHWAY
-----------------------------------------------------------
Certain infrastructural underpinnings beneficial to the working of the market
economy are not best provided by the business community, but by other actors
including governments. In this paper mention is made for example of the /United
Nations Convention on the Recognition and Enforcement of Foreign Arbitral
Awards/ (New York, 10 June 1958), which the business community regularly relies
upon as the back-stop for their international agreements. Common property can
have an enabling value, the Net, basis for the "new" economy, would not be what
it is today without much that has been shared on this basis, having permitted
/"Metcalf's law"/[^9] to take hold. /Metcalf's law/ suggests that the value of
a shared technology is exponential to its user base. In all likelihood it
applies as much to transnational contract law, as to technological networks and
standards. The more people who use a network or standard, the more "valuable"
it becomes, and the more users it will attract. Key infrastructure should be
identified and common property solutions where appropriate nurtured, keeping
transaction costs to a minimum.
The following general perspective is submitted as worthy of consideration (and
support) by the legal, business and academic communities, and governments.
*(a)* Abstract goals valuable to a transnational legal infrastructure include,
certainty and predictability, flexibility, simplicity where possible, and
neutrality, in the sense of being without perceived "unfairness" in the global
context of their application. This covers the content of the "laws" themselves
and the methods used for their interpretation. *(b)* Of law with regard to
technology, "rules should be technology-neutral (i.e., the rules should neither
require nor assume a particular technology) and forward looking (i.e., the
rules should not hinder the use or development of technologies in the
future)."[^10] *(c)* Desirable abstract goals in developing technological
standards and critical technological infrastructure, include, choice, and that
they should be shared and public or "open" as in "open source", and platform
and/or program neutral, that is, interoperable. (On security, to forestall
suggestions to the contrary, popular open source software tends to be as secure
or more so than proprietary software). *(d)* Encryption is an essential part of
the mature "new" economy but remains the subject of some governments'
restriction.[^11] The availability of (and possibility to develop common
transnational standards for) strong encryption is essential for commercial
security and trust with regard to all manner of Net communications and
electronic commerce transactions, /vis-à-vis/ their confidentiality,
integrity, authentication, and non-repudiation. That is, encryption is the
basis for essential commerce related technologies, including amongst many
others, electronic signatures, electronic payment systems and the development
of electronic symbols of ownership (such as electronic bills of lading). *(e)*
As regards the dissemination of primary materials concerning "uniform
standards" in both the legal and technology domains, "the Net" should be used
to make them globally available, free. Technology should be similarly used
where possible to promote the goals outlined under point (a). Naturally, as a
tempered supporter of the market economy,[^12] proprietary secondary materials
and technologies do not merit these reservations. Similarly, actors of the
market economy would take advantage of the common property base of the
commercial highway.
3. MODELLING THE PRIVATE INTERNATIONAL COMMERCIAL LAW INFRASTRUCTURE
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Apart from the study of "laws" or the existing legal infrastructure, there are
a multitude of players involved in their creation whose efforts may be regarded
as being in the nature of systems modelling. Of interest to this paper is the
subset of activity of a few organisations that provide the underpinnings for
the foundation of a successful transnational contract/sales law. These are not
amongst the more controversial legal infrastructure modelling activities, and
represent a small but significant part in simplifying international commerce
and trade.[^13]
Briefly viewing the wider picture, several institutions are involved as
independent actors in systems modelling of the transnational legal
infrastructure. Their roles and mandates and the issues they address are
conceptually different. These include certain United Nations organs and
affiliates such as the United Nations Commission on International Trade Law
(UNCITRAL),[^14] the World Intellectual Property Organisation (WIPO)[^15] and
recently the World Trade Organisation (WTO),[^16] along with other institutions
such as the International Institute for the Unification of Private Law
(UNIDROIT),[^17] the International Chamber of Commerce (ICC),[^18] and the
Hague Conference on Private International Law.[^19] They identify areas that
would benefit from an international or transnational regime and use various
tools at their disposal, (including: treaties; model laws; conventions; rules
and/or principles; standard contracts), to develop legislative "solutions" that
they hope will be subscribed to.
A host of other institutions are involved in providing regional solutions.[^20]
Specialised areas are also addressed by appropriately specialised
institutions.[^21] A result of globalisation is increased competition (also)
amongst States, which are active players in the process, identifying and
addressing the needs of their business communities over a wide range of areas
and managing the suitability to the global economy of their domestic legal,
economic, technological and educational[^22] infrastructures. The role of
States remains to identify what domestic structural support they must provide
to be integrated and competitive in the global economy.
In addition to "traditional" contributors, the technology/commerce/law
confluence provides new challenges and opportunities, allowing, the emergence
of important new players within the commercial field, such as Bolero,[^23]
which, with the backing of international banks and ship-owners, offers
electronic replacements for traditional paper transactions, acting as
transaction agents for the electronic substitute on behalf of the trading
parties. The acceptance of the possibility of applying an institutionally
offered lex has opened the door further for other actors including /ad hoc/
groupings of the business community and/or universities to find ways to be
engaged and actively participate in providing services for themselves and/or
others in this domain.
4. THE FOUNDATION FOR TRANSNATIONAL PRIVATE CONTRACT LAW, ARBITRATION
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The market economy drive perpetuating economic globalisation is also active in
the development and choice of transnational legal solutions. The potential
reward, international sets of contract rules and principles, that can be
counted on to be consistent and as providing a uniform layer of insulation
(with minimal reference back to State law) when applied across the landscape of
a multitude of different municipal legal systems. The business community is
free to utilise them if available, and if not, to develop them, or seek to have
them developed.
The kernel for the development of a transnational legal infrastructure
governing the rights and obligations of private contracting individuals was put
in place as far back as 1958 by the /UN Convention on the Recognition and
Enforcement of Foreign Arbitral Awards/ (/"NY Convention on ICA"/),[^24] now in
force in over a hundred States. Together with freedom of contract, the /NY
Convention on ICA/ made it possible for commercial parties to develop and be
governed by their own /lex/ in their contractual affairs, should they wish to
do so, and guaranteed that provided their agreement was based on international
commercial arbitration (/"ICA"/), (and not against relevant mandatory law) it
would be enforced in all contracting States. This has been given further
support by various more recent arbitration rules and the /UNCITRAL Model Law on
International Commercial Arbitration 1985/,[^25] which now explicitly state
that rule based solutions independent of national law can be applied in
/"ICA"/.[^26]
/"ICA"/ is recognised as the most prevalent means of dispute resolution in
international commerce. Unlike litigation /"ICA"/ survives on its merits as a
commercial service to provide for the needs of the business community.[^27] It
has consequently been more dynamic than national judiciaries, in adjusting to
the changing requirements of businessmen. Its institutions are quicker to adapt
and innovate, including the ability to cater for transnational contracts.
/"ICA"/, in taking its mandate from and giving effect to the will of the
parties, provides them with greater flexibility and frees them from many of the
limitations of municipal law.[^28]
In sum, a transnational/non-national regulatory order governing the contractual
rights and obligations of private individuals is made possible by: *(a)*
States' acceptance of freedom of contract (public policy excepted); *(b)*
Sanctity of contract embodied in the principle /pacta sunt servanda/ *(c)*
Written contractual selection of dispute resolution by international commercial
arbitration, whether /ad hoc/ or institutional, usually under internationally
accepted arbitration rules; *(d)* Guaranteed enforcement, arbitration where
necessary borrowing the State apparatus for law enforcement through the /NY
Convention on ICA/, which has secured for /"ICA"/ a recognition and enforcement
regime unparalleled by municipal courts in well over a hundred contracting
States; *(e)* Transnational effect or non-nationality being achievable through
/"ICA"/ accepting the parties' ability to select the basis upon which the
dispute would be resolved outside municipal law, such as through the selection
of general principles of law or /lex mercatoria/, or calling upon the
arbitrators to act as /amiable compositeur/ or /ex aequo et bono/.
This framework provided by /"ICA"/ opened the door for the modelling of
effective transnational law default rules and principles for contracts
independent of State participation (in their development, application, or
choice of law foundation). Today we have an increased amount of certainty of
content and better control over the desired degree of transnational effect or
non-nationality with the availability of comprehensive insulating rules and
principles such as the /PICC/ or /Principles of European Contract Law/
(/"European Principles"/ or /"PECL"/) that may be chosen, either together with,
or to the exclusion of a choice of municipal law as governing the contract. For
electronic commerce a similar path is hypothetically possible.
5. "STATE CONTRACTED INTERNATIONAL LAW" AND/OR "INSTITUTIONALLY OFFERED LEX"?
/CISG/ AND /PICC/ AS EXAMPLES
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An institutionally offered lex ("IoL", uniform rules and principles) appear to
have a number of advantages over "State contracted international law" ("ScIL",
model laws, treaties and conventions for enactment). The development and
formulation of both "ScIL" and "IoL" law takes time, the /CISG/ representing a
half century of effort[^29] and /PICC/ twenty years.[^30] The /CISG/ by
UNCITRAL represents the greatest success for the unification of an area of
substantive commercial contract law to date, being currently applied by 57
States,[^31] estimated as representing close to seventy percent of world trade
and including every major trading nation of the world apart from England and
Japan. To labour the point, the USA most of the EU (along with Canada,
Australia, Russia) and China, ahead of its entry to the WTO already share the
same law in relation to the international sale of goods. "ScIL" however has
additional hurdles to overcome. *(a)* In order to enter into force and become
applicable, it must go through the lengthy process of ratification and
accession by States. *(b)* Implementation is frequently with various
reservations. *(c)* Even where widely used, there are usually as many or more
States that are exceptions. Success, that is by no means guaranteed, takes time
and for every uniform law that is a success, there are several failures.
Institutionally offered lex ("IoL") comprehensive general contract principles
or contract law restatements that create an entire "legal" environment for
contracting, has the advantage of being instantly available, becoming effective
by choice of the contracting parties at the stroke of a pen. "IoL" is also more
easily developed subsequently, in light of experience and need. Amongst the
reasons for their use is the reduction of transaction cost in their provision
of a set of default rules, applicable transnationally, that satisfy risk
management criteria, being (or becoming) known, tried and tested, and of
predictable effect.[^32] The most resoundingly successful "IoL" example to date
has been the ICC's /Uniform Customs and Practices for Documentary Credits/,
which is subscribed to as the default rules for the letters of credit offered
by the vast majority of banks in the vast majority of countries of the world.
Furthermore uniform principles allow unification on matters that at the present
stage of national and regional pluralism could not be achieved at a treaty
level. There are however, things that only "ScIL" can "engineer", (for example
that which relates to priorities and third party obligations).
*/PICC/:* The arrival of /PICC/ in 1994 was particularly timely. Coinciding as
it did with the successful attempt at reducing trade barriers represented by
the /World Trade Agreement,/[^33] and the start of general Internet use,[^34]
allowed for the exponential growth of electronic commerce, and further
underscored the transnational tendency of commerce. The arrival of /PICC/ was
all the more opportune bearing in mind the years it takes to prepare such an
instrument. Whilst there have been some objections, the /PICC/ (and /PECL/) as
contract law restatements cater to the needs of the business community that
seeks a non-national or transnational law as the basis of its contracts, and
provide a focal point for future development in this direction. Where in the
past they would have been forced to rely on the ethereal and nebulous /lex
mercatoria/, now the business community is provided with the opportunity to
make use of such a "law" that is readily accessible, and has a clear and
reasonably well defined content, that will become familiar and can be further
developed as required. As such the /PICC/ allow for more universal and uniform
solutions. Their future success will depend on such factors as: *(a)*
Suitability of their contract terms to the needs of the business community.
*(b)* Their becoming widely known and understood. *(c)* Their predictability
evidenced by a reasonable degree of consistency in the results of their
application. *(d)* Recognition of their potential to reduce transaction costs.
*(e)* Recognition of their being neutral as between different nations'
interests (East, West; North, South). In the international sale of goods the
/PICC/ can be used in conjunction with more specific rules and regulations,
including (on parties election~e) in sales the /CISG/ to fill gaps in its
provisions.[^35] Provisions of the /CISG/ would be given precedence over the
/PICC/ under the accepted principle of /specialia generalibus derogant/,[^36]
the mandatory content of the /PICC/ excepted. The /CISG/ has many situations
that are not provided for at all, or which are provided for in less detail than
the /PICC/.
Work on /PICC/ and /PECL/ under the chairmanship of Professors Bonell and Ole
Lando respectively, was wisely cross-pollinated (conceptually and through
cross-membership of preparatory committees), as common foundations strengthen
both sets of principles. A couple of points should be noted. Firstly, despite
the maintained desirability of a transnational solution, this does not exclude
the desirability of regional solutions, especially if there is choice, and the
regional solutions are more comprehensive and easier to keep of uniform
application. Secondly, the European Union has powers and influence (within the
EU) unparalleled by UNIDROIT that can be utilised in future with regard to the
/PECL/ if the desirability of a common European contract solution is recognised
and agreed upon by EU member States. As a further observation, there is,
hypothetically at least, nothing to prevent there in future being developed an
alternative extensive (competing) transnational contract /lex/ solution, though
the weighty effort already in place as represented by /PICC/ and the high
investment in time and independent skilled legal minds, necessary to achieve
this in a widely acceptable manner, makes such a development not very likely.
It may however be the case that for electronic commerce, some other
particularly suitable rules and principles will in time be developed in a
similar vein, along the lines of an "IoL".
6. CONTRACT /LEX/ DESIGN. QUESTIONS OF COMMONWEAL
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The virtues of freedom of contract are acknowledged in this paper in that they
allow the international business community to structure their business
relationships to suit their requirements, and as such reflect the needs and
working of the market economy. However, it is instructive also to explore the
limits of the principles: freedom of contract, /pacta sunt servanda/ and
/caveat subscriptor/. These principles are based on free market arguments that
parties best understand their interests, and that the contract they arrive at
will be an optimum compromise between their competing interests. It not being
for an outsider to regulate or evaluate what a party of their own free will and
volition has gained from electing to contract on those terms. This approach to
contract is adversarial, based on the conflicting wills of the parties,
achieving a meeting of minds. It imposes no duty of good faith and fair dealing
or of loyalty (including the disclosure of material facts) upon the contracting
parties to one another, who are to protect their own interests. However, in
international commerce, this demand can be more costly, and may have a negative
and restrictive effect. Also, although claimed to be neutral in making no
judgement as to the contents of a contract, this claim can be misleading.
6.1 THE NEUTRALITY OF CONTRACT LAW AND INFORMATION COST
.......................................................
The information problem is a general one that needs to be recognised in its
various forms where it arises and addressed where possible.
Adherents to the /caveat subscriptor/ model, point to the fact that parties
have conflicting interests, and should look out for their own interests.
However information presents particular problems which are exacerbated in
international commerce.[^37] As Michael Trebilcock put it: "Even the most
committed proponents of free markets and freedom of contract recognise that
certain information preconditions must be met for a given exchange to possess
Pareto superior qualities."[^38] Compared with domestic transactions, the
contracting parties are less likely to possess information about each other or
of what material facts there may be within the other party's knowledge, and
will find it more difficult and costly to acquire. With resource inequalities,
some parties will be in a much better position to determine and access what
they need to know, the more so as the more information one already has, the
less it costs to identify and to obtain any additional information that is
required.[^39] The converse lot of the financially weaker party, makes their
problem of high information costs (both actual and relative), near
insurmountable. Ignorance may even become a rational choice, as the marginal
cost of information remains higher than its marginal benefit. "This, in fact is
the economic rationale for the failure to fully specify all contingencies in a
contract."[^40] The argument is tied to transaction cost and further elucidates
a general role played by underlying default rules and principles. It also
extends further to the value of immutable principles that may help mitigate the
problem in some circumstances. More general arguments are presented below.
6.2 JUSTIFYING MANDATORY LOYALTY PRINCIPLES
...........................................
Given the ability to create alternative solutions and even an independent /lex/
a question that arises is as to what limits if any should be imposed upon
freedom of contract? What protective principles are required? Should protective
principles be default rules that can be excluded? Should they be mandatory?
Should mandatory law only exist at the level of municipal law?
A kernel of mandatory protective principles with regard to loyalty may be
justified, as beneficial, and even necessary for "IoL" to be acceptable in
international commerce, in that they (on the balance) reflect the collective
needs of the international business community. The present author is of the
opinion that the duties of good faith and fair dealing and loyalty (or an
acceptable equivalent) should be a necessary part of any attempt at the
self-legislation or institutional legislation of any contract regime that is
based on "rules and principles" (rather than a national legal order). If absent
a requirement for them should be imposed by mandatory international law. Such
protective provisions are to be found within the /PICC/ and /PECL/.[^41] As
regards /PICC/ *(a)* The loyalty (and other protective) principles help bring
about confidence and foster relations between parties. They provide an
assurance in the international arena where parties are less likely to know each
other and may have more difficulty in finding out about each other. *(b)* They
better reflect the focus of the international business community on a business
relationship from which both sides seek to gain. *(c)* They result in wider
acceptability of the principles within both governments and the business
community in the pluralistic international community. These protective
principles may be regarded as enabling the /PICC/ to better represent the needs
of the commonweal. *(d)* Good faith and fair dealing[^42] are fundamental
underlying principles of international commercial relations. *(e)* Reliance
only on the varied mandatory law protections of various States does not
engender uniformity, which is also desirable with regard to that which can be
counted upon as immutable. (Not that it is avoidable, given that mandatory
State law remains overriding.) More generally, freedom of contract benefits
from these protective principles that need immutable protection from
contractual freedom to effectively serve their function. In seeking a
transnational or non-national regime to govern contractual relations, one might
suggest this to be the minimum price of freedom of contract that should be
insisted upon by mandatory international law, as the limitation which hinders
the misuse by one party of unlimited contractual freedom. They appear to be an
essential basis for acceptability of the autonomous contract (non-national
contract, based on agreed rules and principles/ "IoL"). As immutable principles
they (hopefully and this is to be encouraged) become the default standard for
the conduct of international business and as such may be looked upon as "common
property." Unless immutable they suffer a fate somewhat analogous to that of
"the tragedy of the commons."[^43] It should be recognised that argument over
the loyalty principles should be of degree, as the concept must not be
compromised, and needs to be protected (even if they come at the price of a
degree of uncertainty), especially against particularly strong parties who are
most likely to argue against their necessity.
7. PROBLEMS BEYOND UNIFORM TEXTS
--------------------------------
7.1 IN SUPPORT OF FOUR OBJECTIVES
.................................
In the formulation of many international legal texts a pragmatic approach was
taken. Formulating legislators from different States developed solutions based
on suitable responses to factual example circumstances. This was done,
successfully, with a view to avoiding arguments over alternative legal
semantics and methodologies. However, having arrived at a common text, what
then? Several issues are raised by asking the question, given that differences
of interpretation can arise and become entrenched, by what means is it possible
to foster a sustainable drive towards the uniform application of shared texts?
Four principles appear to be desirable and should insofar as it is possible be
pursued together: *(i)* the promotion of certainty and predictability; *(ii)*
the promotion of uniformity of application; *(iii)* the protection of
democratic ideals and ensuring of jurisprudential deliberation, and; *(iv)* the
retention of efficiency.
7.2 IMPROVING THE PREDICTABILITY, CERTAINTY AND UNIFORM APPLICATION OF
INTERNATIONAL AND TRANSNATIONAL LAW
..............................................................................
The key to the (efficient) achievement of greater certainty and predictability
in an international and/or transnational commercial law regime is through the
uniform application of shared texts that make up this regime.
Obviously a distinction is to be made between transnational predictability in
application, that is "uniform application", and predictability at a domestic
level. Where the "uniform law" is applied by a municipal court of State "A"
that looks first to its domestic writings, there may be a clear - predictable
manner of application, even if not in the spirit of the "Convention". Another
State "B" may apply the uniform law in a different way that is equally
predictable, being perfectly consistent internally. This however defeats much
of the purpose of the uniform law.
A first step is for municipal courts to accept the /UN Convention on the Law of
Treaties 1969/ (in force 1980) as a codification of existing public
international law with regard to the interpretation of treaties.[^44] A
potentially fundamental step towards the achievement of uniform application is
through the conscientious following of the admonitions of the interpretation
clauses of modern conventions, rules and principles[^45] to take into account
their international character and the need to promote uniformity in their
application,[^46] together with all this implies.[^47] However, the problems of
uniform application, being embedded in differences of legal methodology, go
beyond the agreement of a common text, and superficial glances at the works of
other legal municipalities. These include questions related to sources of
authority and technique applied in developing valid legal argument. Problems
with sources include differences in authority and weight given to: *(a)*
legislative history; *(b)* rulings domestic and international; *(c)* official
and other commentaries; *(d)* scholarly writings. There should be an ongoing
discussion of legal methodology to determine the methods best suited to
addressing the problem of achieving greater certainty, predictability and
uniformity in the application of shared international legal texts. With regard
to information sharing, again the technology associated with the Net offers
potential solutions.
7.3 THE NET AND INFORMATION SHARING THROUGH TRANSNATIONAL DATABASES
...................................................................
The Net has been a godsend permitting the collection and dissemination of
information on international law. With the best intentions to live up to
admonitions to "to take into account their international character and the need
to promote uniformity in their application" of "ScIL" and "IoL", a difficulty
has been in knowing what has been written and decided elsewhere. In discussing
solutions, Professor Honnold in /"Uniform Words and Uniform Application" /[^48]
suggests the following: "General Access to Case-Law and Bibliographic Material:
The development of a homogenous body of law under the Convention depends on
channels for the collection and sharing of judicial decisions and bibliographic
material so that experience in each country can be evaluated and followed or
rejected in other jurisdictions." Honnold then goes on to discuss "the need for
an international clearing-house to collect and disseminate experience on the
Convention" the need for which, he writes there is general agreement. He also
discusses information-gathering methods through the use of national reporters.
He poses the question "Will these channels be adequate? ..."
The Net, offering inexpensive ways to build databases and to provide global
access to information, provides an opportunity to address these problems that
was not previously available. The Net extends the reach of the admonitions of
the interpretation clauses. Providing the medium whereby if a decision or
scholarly writing exists on a particular article or provision of a Convention,
anywhere in the world, it will be readily available. Whether or not a national
court or arbitration tribunal chooses to follow their example, they should be
aware of it. Whatever a national court decides will also become internationally
known, and will add to the body of experience on the Convention.[^49]
Such a library would be of interest to the institution promulgating the text,
governments, practitioners and researchers alike. It could place at your
fingertips: *(a)* Convention texts. *(b)* Implementation details of contracting
States. *(c)* The legislative history. *(d)* Decisions generated by the
convention around the world (court and arbitral where possible). *(e)* The
official and other commentaries. *(f)* Scholarly writings on the Convention.
*(g)* Bibliographies of scholarly writings. *(h)* Monographs and textbooks.
*(i)* Student study material collections. *(j)* Information on promotional
activities, lectures - moots etc. *(k)* Discussion groups/ mailing groups and
other more interactive features.
With respect to the /CISG/ such databases are already being maintained.[^50]
The database by ensuring the availability of international materials, used in
conjunction with legal practice, helps to support the forenamed four
principles. That of efficiency is enhanced especially if there is a single
source that can be searched for the information required.
The major obstacle that remains to being confident of this as the great and
free panacea that it should be is the cost of translation of texts.
7.4 JUDICIAL MINIMALISM PROMOTES DEMOCRATIC JURISPRUDENTIAL DELIBERATION
........................................................................
How to protect liberal democratic ideals and ensure international
jurisprudential deliberation? Looking at judicial method, where court decisions
are looked to for guidance, liberal democratic ideals and international
jurisprudential deliberation are fostered by a judicial minimalist approach.
For those of us with a common law background, and others who pay special
attention to cases as you are invited to by interpretation clauses, there is
scope for discussion as to the most appropriate approach to be taken with
regard to judicial decisions. US judge Cass Sunstein suggestion of judicial
minimalism[^51] which despite its being developed in a different context[^52]
is attractive in that it is suited to a liberal democracy in ensuring
democratic jurisprudential deliberation. It maintains discussion, debate, and
allows for adjustment as appropriate and the gradual development of a common
understanding of issues. Much as one may admire farsighted and far-reaching
decisions and expositions, there is less chance with the minimalist approach of
the (dogmatic) imposition of particular values. Whilst information sharing
offers the possibility of the percolation of good ideas.[^53] Much as we admire
the integrity of Dworkin's Hercules,[^54] that he can consistently deliver
single solutions suitable across such disparate socio-economic cultures is
questionable. In examining the situation his own "integrity" would likely give
him pause and prevent him from dictating that he can.[^55] This position is
maintained as a general principle across international commercial law, despite
private (as opposed to public) international commercial law not being an area
of particularly "hard" cases of principle, and; despite private international
commercial law being an area in which over a long history it has been
demonstrated that lawyers are able to talk a common language to make themselves
and their concepts (which are not dissimilar) understood by each other.[^56]
7.5 NON-BINDING INTERPRETATIVE COUNCILS AND THEIR CO-ORDINATING GUIDES CAN
PROVIDE A FOCAL POINT FOR THE CONVERGENCE OF IDEAS - CERTAINTY, PREDICTABILITY,
AND EFFICIENCY
..............................................................................
A respected central guiding body can provide a guiding influence with respect
to: *(a)* the uniform application of texts; *(b)* information management
control. Given the growing mass of writing on common legal texts - academic and
by way of decisions, we are faced with an information management problem.[^57]
Supra-national interpretative councils have been called for previously[^58] and
have for various reasons been regarded impracticable to implement including
problems associated with getting States to formally agree upon such a body with
binding authority.
However it is not necessary to go this route. In relation to "IoL" in such
forms as the /PICC/ and /PECL/ it is possible for the promulgators
themselves,[^59] to update and clarify the accompanying commentary of the rules
and principles, and to extend their work, through having councils with the
necessary delegated powers. In relation to the /CISG/ it is possible to do
something similar of a non-binding nature, through the production of an updated
commentary by an interpretive council (that could try to play the role of
Hercules).[^60] With respect, despite some expressed reservations, it is not
true that it would have no more authority than a single author writing on the
subject. A suitable non-binding interpretative council would provide a focal
point for the convergence of ideas. Given the principle of ensuring democratic
jurisprudential deliberation, that such a council would be advisory only
(except perhaps on the contracting parties election) would be one of its more
attractive features, as it would ensure continued debate and development.
7.6 CAPACITY BUILDING
.....................
"... one should create awareness about the fact that an international
contract or transaction is not naturally rooted in one particular domestic
law, and that its international specifics are best catered for in a uniform
law."[^61]
_/Capacity building/_ - raising awareness, providing education, creating a new
generation of lawyers versed in a relatively new paradigm. Capacity building in
international and transnational law, is something relevant institutions
including arbitration institutions; the business community, and; far sighted
States, should be interested in promoting. Finding means to transcend national
boundaries is also to continue in the tradition of seeking the means to break
down barriers to legal communication and understanding. However, while the
business community seeks and requires greater uniformity in their business
relations, there has paradoxically, at a national level, been a trend towards a
nationalisation of contract law, and a regionalisation of business
practice.[^62]
As an example, Pace University, Institute of International Commercial Law,
plays a prominent role with regard to capacity building in relation to the
/CISG/ and /PICC/. Apart from the previously mentioned /CISG Database/, Pace
University organise a large annual moot on the /CISG/[^63] this year involving
students of 79 universities from 28 countries, and respected arbitrators from
the word over. Within the moot the finding of solutions based on /PICC/ where
the /CISG/ is silent, is encouraged. Pace University also organise an essay
competition[^64] on the /CISG/ and/or the /PICC/, which next year is to be
expanded to include the /PECL/ as a further option.
8. MARKETING OF TRANSNATIONAL SOLUTIONS
---------------------------------------
Certain aspects of the Net/web may already be passé, but did you recognise it
for what it was, or might become, when it arrived?
As uniform law and transnational solutions are in competition with municipal
approaches, to be successful a certain amount of marketing is necessary and may
be effective. The approach should involve ensuring the concept of what they
seek to achieve is firmly implanted in the business, legal and academic
communities, and through engaging the business community and arbitration
institutions, in capacity building and developing a new generation of lawyers.
Feedback from the business community, and arbitrators will also prove
invaluable. Whilst it is likely that the business community will immediately be
able to recognise their potential advantages, it is less certain that they will
find the support of the legal community. The normal reasons would be similar to
those usually cited as being the primary constraints on its development
"conservatism, routine, prejudice and inertia" René David. These are problems
associated with gaining the initial foothold of acceptability, also associated
with the lower part of an exponential growth curve. In addition the legal
community may face tensions arising for various reasons including the
possibility of an increase in world-wide competition.
There are old well developed legal traditions with developed infrastructures
and roots well established in several countries, that are dependable and known.
The question arises why experiment with alternative non-extensively tested
regimes? The required sophistication is developed in the centres providing
legal services, and it may be argued that there is not the pressing need for
unification or for transnational solutions, as the traditional way of
contracting provides satisfactorily for the requirements of global commerce.
The services required will continue to be easily and readily available from
existing centres of skill. English law, to take an example is for various
reasons (including perhaps language, familiarity of use, reputation and
widespread Commonwealth[^65] relations) the premier choice for the law
governing international commercial transactions, and is likely to be for the
foreseeable future. Utilising the Commonwealth as an example, what the
"transnational" law (e.g. /CISG/) experience illustrates however, is that for
States there may be greater advantage to be gained from participation in a
horizontally shared area of commercial law, than from retaining a traditional
vertically integrated commercial law system, based largely for example on the
English legal system.
Borrowing a term from the information technology sector, it is essential to
guard against FUD (fear, uncertainty and doubt) with regard to the viability of
new and/or competing transnational solutions, that may be spread by their
detractors, and promptly, in the manner required by the free market, address
any real problems that are discerned.
9. TOOLS IN FUTURE DEVELOPMENT
------------------------------
An attempt should be made by the legal profession to be more contemporary and
to keep up to date with developments in technology and the sciences, and to
adopt effective tools where suitable to achieve their goals. Technology one way
or another is likely to encroach further upon law and the way we design it.
Science works across cultures and is aspired to by most nations as being
responsible for the phenomenal success of technology (both are similarly
associated with globalisation). Science is extending its scope to (more
confidently) tackle complex systems. It would not hurt to be more familiar with
relevant scientific concepts and terminology. Certainly lawyers across the
globe, myself included, would also benefit much in their conceptual reasoning
from an early dose of the philosophy of science,[^66] what better than Karl
Popper on scientific discovery and the role of "falsification" and value of
predictive probity.[^67] And certainly Thomas Kuhn on scientific advancement
and "paradigm shifts"[^68] has its place. Having mentioned Karl Popper, it
would not be unwise to go further (outside the realms of philosophy of science)
to study his defence of democracy in both volumes of /Open Society and Its
Enemies/.[^69]
Less ambitiously there are several tools not traditionally in the lawyers set,
that may assist in transnational infrastructure modelling. These include
further exploration and development of the potential of tools, including to
suggest a few by way of example: flow charts, fuzzy thinking, "intelligent"
electronic agents and Net collaborations.
In the early 1990's I was introduced to a quantity surveyor and engineer who
had reduced the /FIDIC Red Book/[^70] to over a hundred pages of intricate flow
charts (decision trees), printed horizontally on roughly A4 sized sheets. He
was employed by a Norwegian construction firm, who insisted that based on past
experience, they knew that he could, using his charts, consistently arrive at
answers to their questions in a day, that law firms took weeks to produce. Flow
charts can be used to show interrelationships and dependencies, in order to
navigate the implications of a set of rules more quickly. They may also be used
more proactively (and /ex ante/ rather than /ex post/) in formulating texts, to
avoid unnecessary complexity and to arrive at more practical, efficient and
elegant solutions.
Explore such concepts as "fuzzy thinking"[^71] including fuzzy logic, fuzzy set
theory, and fuzzy systems modelling, of which classical logic and set theory
are subsets. Both by way of analogy and as a tool fuzzy concepts are better at
coping with complexity and map more closely to judicial thinking and argument
in the application of principles and rules. Fuzzy theory provides a method for
analysing and modelling principle and rule based systems, even where
conflicting principles may apply permitting /inter alia/ working with competing
principles and the contextual assignment of precision to terms such as
"reasonableness". Fuzzy concepts should be explored in expert systems, and in
future law. Problems of scaling associated with multiple decision trees do not
prevent useful applications, and structured solutions. The analysis assists in
discerning what lawyers are involved with.
"Intelligent" electronic agents can be expected both to gather information on
behalf of the business community and lawyers. In future electronic agents are
likely to be employed to identify and bring to the attention of their
principals "invitations to treat" or offers worthy of further investigation. In
some cases they will be developed and relied upon as electronic legal agents,
operating under a programmed mandate and vested with the authority to enter
certain contracts on behalf of their principals. Such mandate would include
choice of law upon which to contract, and the scenario could be assisted by
transnational contract solutions (and catered for in the design of "future
law").
Another area of technology helping solve legal problems relates to various
types of global register and transaction centres. Amongst them property
registers being an obvious example, including patents and moveable property.
Bolero providing an example of how electronic documents can be centrally
brokered on behalf of trading parties.
Primary law should be available on the Net free, and this applies also to "IoL"
and the static material required for their interpretation. This should be the
policy adopted by all institutions involved in contributing to the
transnational legal infrastructure. Where possible larger databases also should
be developed and shared. The Net has reduced the cost of dissemination of
material, to a level infinitesimally lower than before. Universities now can
and should play a more active role. Suitable funding arrangements should be
explored that do not result in proprietary systems or the forwarding of
specific lobby interests. In hard-copy to promote uniform standards,
institutions should also strive to have their materials available at a
reasonable price. Many appear to be unacceptably expensive given the need for
their promotion and capacity building, amongst students, and across diverse
States.
Follow the open standards and community standards debate in relation to the
development of technology standards and technology infrastructure tools -
including operating systems,[^72] to discover what if anything it might suggest
for the future development of law standards.
10. AS AN ASIDE, A WORD OF CAUTION
----------------------------------
I end with an arguably gratuitous observation, by way of a reminder and general
warning. Gratuitous in the context of this paper because the areas focused
upon[^73] were somewhat deliberately selected to fall outside the more
contentious and "politically" problematic areas related to globalisation,
economics, technology, law and politics.[^74] Gratuitous also because there
will be no attempt to concretise or exemplify the possibility suggested.
Fortunately, we are not (necessarily) talking about a zero sum game, however,
it is necessary to be able to distinguish and recognise that which may harm.
International commerce/trade is competitive, and by its nature not benign, even
if it results in an overall improvement in the economic lot of the peoples of
our planet. "Neutral tests" such as Kaldor-Hicks efficiency, do not require
that your interests are benefited one iota, just that whilst those of others
are improved, yours are not made worse. If the measure adopted is overall
benefit, it is even more possible that an overall gain may result where your
interests are adversely affected. The more so if you have little, and those
that gain, gain much. Furthermore such "tests" are based on assumptions, which
at best are approximations of reality (e.g. that of zero transaction costs,
where in fact not only are they not, but they are frequently proportionately
higher for the economically weak). At worst they may be manipulated /ex ante/
with knowledge of their implications (e.g. engineering to ensure actual or
relative[^75] asymmetrical transaction cost). It is important to be careful in
a wide range of circumstances related to various aspects of the modelling of
the infrastructure for international commerce that have an impact on the
allocation of rights and obligations, and especially the allocation of
resources, including various types of intellectual property rights. Ask what is
the objective and justification for the protection? How well is the objective
met? Are there other consequential effects? Are there other objectives that are
worthy of protection? Could the stated objective(s) be achieved in a better
way?
Within a system are those who benefit from the way it has been, that may oppose
change as resulting in loss to them or uncertainty of their continued
privilege. For a stable system to initially arise that favours such a Select
Set, does not require the conscious manipulation of conditions by the Select
Set. Rather it requires that from the system (set) in place the Select Set
emerges as beneficiary. Subsequently the Select Set having become established
as favoured and empowered by their status as beneficiary, will seek to do what
it can, to influence circumstances to ensure their continued beneficial status.
That is, to keep the system operating to their advantage (or tune it to work
even better towards this end), usually with little regard to the conditions
resulting to other members of the system. Often this will be a question of
degree, and the original purpose, or an alternative "neutral" argument, is
likely to be used to justify the arrangement. The objective from the
perspective of the Select Set is fixed; the means at their disposal may vary.
Complexity is not required for such situations to arise, but having done so
subsequent plays by the Select Set tend towards complexity. Furthermore, moves
in the interest of the Select Set are more easily obscured/disguised in a
complex system. Limited access to information and knowledge are devastating
handicaps without which change cannot be contemplated let alone negotiated.
Frequently, having information and knowledge are not enough. The protection of
self-interest is an endemic part of our system, with the system repeatedly
being co-opted to the purposes of those that are able to manipulate it.
Membership over time is not static, for example, yesterday's "copycat nations"
are today's innovators, and keen to protect their intellectual property. Which
also illustrates the point that what it may take to set success in motion, may
not be the same as that which is preferred to sustain it. Whether these
observations appear to be self-evident and/or abstract and out of place with
regard to this paper, they have far reaching implications repeatedly observable
within the law, technology, and commerce (politics) nexus. Even if not arising
much in the context of the selected material for this paper, their mention is
justified by way of warning. Suitable examples would easily illustrate how
politics arises inescapably as an emergent property from the nexus of commerce,
technology, and law.[^76]
11. ENDNOTE
-----------
* Ralph Amissah is a Fellow of Pace University, Institute for International
Commercial Law. RA lectured on the private law
aspects of international trade whilst at the Law Faculty of the University of
Tromsø, Norway. RA built the first web site related
to international trade law, now known as lexmercatoria.org and described as "an
(international | transnational) commercial law and e-commerce infrastructure
monitor". RA is interested in the law, technology,
commerce nexus. RA works with the law firm Amissahs.
/[This is a draft document and subject to change.]/
All errors are very much my own.
Ralph@Amissah.com
[1]: /The Autonomous Contract: Reflecting the borderless electronic-commercial
environment in contracting/ was published in /Elektronisk handel - rettslige
aspekter, Nordisk årsbok i rettsinformatikk 1997/ (Electronic Commerce -
Legal Aspects. The Nordic yearbook for Legal Informatics 1997) Edited by Randi
Punsvik, or at
[2]: As Maria Cattaui Livanos suggests in /The global economy - an opportunity to
be seized/ in /Business World/ the Electronic magazine of the International
Chamber of Commerce (Paris, July 1997) at
"Globalization is unstoppable. Even though it may be only in its early stages,
it is already intrinsic to the world economy. We have to live with it,
recognize its advantages and learn to manage it.
That imperative applies to governments, who would be unwise to attempt to stem
the tide for reasons of political expediency. It also goes for companies of
all sizes, who must now compete on global markets and learn to adjust their
strategies accordingly, seizing the opportunities that globalization offers."
[3]: To remain successful, being in competition, the business community is
compelled to take advantage of the opportunities provided by globalisation.
[4]: Realists would contend that law is contextual and best understood by
exploring the interrelationships between law and the other social sciences,
such as sociology, psychology, political science, and economics.
[5]: Part of a section cited in Mercuro and Steven G. Medema, /Economics and the
Law: from Posner to Post-Modernism/ (Princeton, 1997) p. 11, with reference to
Karl N. Llewellyn The Effect of Legal Institutions upon Economics, American
Economic Review 15 (December 1925) pp 655-683, Mark M. Litchman Economics, the
Basis of Law, American Law Review 61 (May-June 1927) pp 357-387, and W. S.
Holdsworth A Neglected Aspect of the Relations between Economic and Legal
History, Economic History Review 1 (January 1927-1928) pp 114-123.
[6]: For a good introduction see Nicholas Mercuro and Steven G. Medema,
/Economics and the Law: from Posner to Post-Modernism/ (Princeton, 1997).
These include: Chicago law and economics (New law and economics); New Haven
School of law and economics; Public Choice Theory; Institutional law and
economics; Neoinstitutional law and economics; Critical Legal Studies.
[7]: Case overstated, but this is an essential point. It is not be helpful to be
overly tied to the past. It is necessary to be able to look ahead and explore
new solutions, and be aware of the implications of "complexity" (as to to the
relevance of past circumstances to the present).
[8]: The majority of which are beyond the scope of this paper. Examples include:
encryption and privacy for commercial purposes; digital signatures; symbolic
ownership; electronic intellectual property rights.
[9]: Complexity theory is a branch of mathematics and physics that examines
non-linear systems in which simple sets of deterministic rules can lead to
highly complicated results, which cannot be predicted accurately. A study of
the subject is provided by Nicholas Rescher /Complexity: A Philosophical
Overview/ (New Brunswick, 1998). See also Jack Cohen and Ian Stewart, /The
Collapse of Chaos: Discovering Simplicity in a Complex World/ (1994).
[10]: Robert Metcalf, founder of 3Com.
[11]: /US Framework for Global Electronic Commerce/ (1997)
[12]: The EU is lifting such restriction, and the US seems likely to follow suit.
[13]: Caveats extending beyond the purview of this paper. It is necessary to be
aware that there are other overriding interests, global and domestic, that the
market economy is ill suited to providing for, such as the environment, and
possibly key public utilities that require long term planning and high
investment. It is also necessary to continue to be vigilant against that which
even if arising as a natural consequence of the market economy, has the
potential to disturb or destroy its function, such as monopolies.
[14]: Look for instance at national customs procedures, and consumer protection.
[15]:
[16]:
[17]:
[18]:
[19]:
[20]:
[21]: such as ASEAN the European Union (EU)
MERCOSUR
and North American Free Trade Agreement (NAFTA)
[22]: e.g. large international banks; or in the legal community, the Business
Section of the International Bar Association (IBA) with its membership of
lawyers in over 180 countries.
[23]: For a somewhat frightening peek and illuminating discussion of the role of
education in the global economy as implemented by a number of successful
States see Joel Spring, /Education and the Rise of the Global Economy/
(Mahwah, NJ, 1998).
[24]: also
[25]: at
[26]: at
[27]: Lando, /Each Contracting Party Must Act In Accordance with Good Faith and
Fair Dealing/ in /Festskrift til Jan Ramberg/ (Stockholm, 1997) p. 575. See
also UNIDROIT Principles, Preamble 4 a. Also Arthur Hartkamp, The Use of
UNIDROIT Principles of International Commercial Contracts by National and
Supranational Courts (1995) in UNIDROIT Principles: A New Lex Mercatoria?, pp.
253-260 on p. 255. But see Goode, /A New International Lex Mercatoria?/ in
/Juridisk Tidskrift/ (1999-2000 nr 2) p. 256 and 259.
[28]: /"ICA"/ being shaped by market forces and competition adheres more closely
to the rules of the market economy, responding to its needs and catering for
them more adequately.
[29]: As examples of this, it seeks to give effect to the parties' agreement
upon: the lex mercatoria as the law of the contract; the number of, and
persons to be "adjudicators"; the language of proceedings; the procedural
rules to be used, and; as to the finality of the decision.
[30]: /UNCITRAL Convention on Contracts for the International Sale of Goods 1980/
see at
The /CISG/ may be regarded as the culmination of an effort in the field dating
back to Ernst Rabel, (/Das Recht des Warenkaufs/ Bd. I&II (Berlin, 1936-1958).
Two volume study on sales law.) followed by the Cornell Project, (Cornell
Project on Formation of Contracts 1968 - Rudolf Schlesinger, Formation of
Contracts. A study of the Common Core of Legal Systems, 2 vols. (New York,
London 1968)) and connected most directly to the UNIDROIT inspired /Uniform
Law for International Sales/ (ULIS
at and ULF at
), the main
preparatory works behind the /CISG/ (/Uniform Law on the Formation of
Contracts for the International Sale of Goods/ (ULF) and the /Convention
relating to a Uniform Law on the International Sale of Goods/ (ULIS) The
Hague, 1964.).
[31]: /UNIDROIT Principles of International Commercial Contracts/ commonly
referred to as the /UNIDROIT Principles/ and within this paper as /PICC/ see
at and
The first edition of the /PICC/ were finalised in 1994, 23 years after their
first conception, and 14 years after work started on them in earnest.
[32]: As of February 2000.
[33]: "[P]arties often want to close contracts quickly, rather than hold up the
transaction to negotiate solutions for every problem that might arise."
Honnold (1992) on p. 13.
[34]:
[35]: See Amissah, /On the Net and the Liberation of Information that wants to be
Free/ in ed. Jens Edvin A. Skoghøy /Fra institutt til fakultet,
Jubileumsskrift i anledning av at IRV ved Universitetet i Tromsø feirer 10
år og er blitt til Det juridiske fakultet/ (Tromsø, 1996) pp. 59-76 or the
same at
[36]: Also consider present and future possibilities for such use of /PICC/ under
/CISG/ articles 8 and 9.
[37]: Drobnig, id. p. 228, comment that the /CISG/ precludes recourse to general
principles of contract law in Article 7. This does not refer to the situation
where parties determine that the /PICC/ should do so, see /CISG/ Article 6. Or
that in future the /PICC/ will not be of importance under /CISG/ Articles 8
and 9.
[38]: "Special principles have precedence over general ones." See Huet, Synthesis
(1995) p. 277.
[39]: The more straightforward cases of various types of misrepresentation apart.
[40]: Trebilcock, (1993) p. 102, followed by a quotation of Milton Friedman, from
/Capitalism and Freedom/ (1962) p. 13.
[41]: Trebilcock, (1993) p. 102, note quoted passage of Kim Lane Scheppele,
/Legal Secrets: Equality and Efficiency in the Common Law/ (1988) p. 25.
[42]: See for example Nicholas Mercuro and Steven G. Medema, p. 58
[43]: Examples include: the deliberately excluded validity (Article 4); the
provision on interest (Article 78); impediment (Article 79), and; what many
believe to be the inadequate coverage of battle of forms (Article 19).
[44]: The commented /PECL/ explain "'Good faith' means honesty and fairness in
mind, which are subjective concepts... 'fair dealing' means observance of
fairness in fact which is an objective test".
[45]: Special problem regarding common/shared resources discussed by Garrett
Hardin in Science (1968) 162 pp. 1243-1248. For short discussion and summary
see Trebilcock, (1993) p. 13-15.
[46]: This is the position in English law see Lord Diplock in Fothergill v
Monarch Airlines [1981], A.C. 251, 282 or see
also Mann (London, 1983) at p. 379. The relevant articles on interpretation
are Article 31 and 32.
[47]: Examples: The /CISG/, Article 7; The /PICC/, Article 1.6; /PECL/ Article
1.106; /UN Convention on the Carriage of Goods by Sea (The Hamburg Rules)
1978/, Article 3; /UN Convention on the Limitation Period in the International
Sale of Goods 1974/ and /1978/, Article 7; /UN Model Law on Electronic
Commerce 1996/, Article 3; /UNIDROIT Convention on International Factoring
1988/, Article 4; /UNIDROIT Convention on International Financial Leasing
1988/, Article 6; also /EC Convention on the Law Applicable to Contractual
Obligations 1980/, Article 18.
[48]: Such as the /CISG/ provision on interpretation - Article 7.
[49]: For an online collection of articles see the Pace /CISG/ Database
and amongst the many
other articles do not miss Michael Van Alstine /Dynamic Treaty Interpretation/
146 /University of Pennsylvania Law Review/ (1998) 687-793.
[50]: Based on the /CISG/, and inputs from several professors from different
legal jurisdictions, on the problems of achieving the uniform application of
the text across different legal municipalities. J. Honnold, /Uniform words and
uniform applications. Uniform Words and Uniform Application: The 1980 Sales
Convention and International Juridical Practice/. /Einheitliches Kaufrecht und
nationales Obligationenrecht. Referate Diskussionen der Fachtagung/. am
16/17-2-1987. Hrsg. von P. Schlechtriem. Baden-Baden, Nomos, 1987. p. 115-147,
at p. 127-128.
[51]: Nor is it particularly difficult to set into motion the placement of such
information on the Net. With each interested participant publishing for their
own interest, the Net could provide the key resources to be utilised in the
harmonisation and reaching of common understandings of solutions and uniform
application of legal texts. Works from all countries would be available.
[52]: Primary amongst them Pace University, Institute of International Commercial
Law, /CISG/ Database which provides secondary
support for the /CISG/, including providing a free on-line database of the
legislative history, academic writings, and case-law on the /CISG/ and
additional material with regard to /PICC/ and /PECL/ insofar as they may
supplement the /CISG/. Furthermore, the Pace /CISG/ Project, networks with the
several other existing Net based "autonomous" /CISG/ projects. UNCITRAL under
Secretary Gerold Herrmann, has its own database through which it distributes
its case law materials collected from national reporters (CLOUT).
[53]: Cass R. Sunstein, /One Case at a Time - Judicial Minimalism on the Supreme
Court/ (1999)
[54]: His analysis is developed based largely on "hard" constitutional cases of
the U.S.
[55]: D. Stauffer, /Introduction to Percolation Theory/ (London, 1985).
Percolation represents the sudden dramatic expansion of a common idea or ideas
thought he reaching of a critical level/mass in the rapid recognition of their
power and the making of further interconnections. An epidemic like infection
of ideas. Not quite the way we are used to the progression of ideas within a
conservative tradition.
[56]: Ronald Dworkin, /Laws Empire/ (Harvard, 1986); /Hard Cases in Harvard Law
Review/ (1988).
[57]: Hercules was created for U.S. Federal Cases and the community represented
by the U.S.
[58]: In 1966, a time when there were greater differences in the legal systems of
States comprising the world economy Clive Schmitthoff was able to comment
that:
"22. The similarity of the law of international trade transcends the division
of the world between countries of free enterprise and countries of centrally
planned economy, and between the legal families of the civil law of Roman
inspiration and the common law of English tradition. As a Polish scholar
observed, "the law of external trade of the countries of planned economy does
not differ in its fundamental principles from the law of external trade of
other countries, such as e.g., Austria or Switzerland. Consequently,
international trade law specialists of all countries have found without
difficulty that they speak a 'common language'
23. The reason for this universal similarity of the law of international trade
is that this branch of law is based on three fundamental propositions: first,
that the parties are free, subject to limitations imposed by the national
laws, to contract on whatever terms they are able to agree (principle of the
autonomy of the parties' will); secondly, that once the parties have entered
into a contract, that contract must be faithfully fulfilled (/pacta sunt
servanda/) and only in very exceptional circumstances does the law excuse a
party from performing his obligations, viz., if force majeure or frustration
can be established; and, thirdly that arbitration is widely used in
international trade for the settlement of disputes, and the awards of
arbitration tribunals command far-reaching international recognition and are
often capable of enforcement abroad."
/Report of the Secretary-General of the United Nations, Progressive
Development of the Law of International Trade/ (1966). Report prepared for the
UN by C. Schmitthoff.
[59]: Future if not current.
[60]: /UNCITRAL Secretariat/ (1992) p. 253. Proposed by David (France) at the
second UNCITRAL Congress and on a later occasion by Farnsworth (USA). To date
the political will backed by the financing for such an organ has not been
forthcoming. In 1992 the UNCITRAL Secretariat concluded that "probably the
time has not yet come". Suggested also by Louis Sono in /Uniform laws require
uniform interpretation: proposals for an international tribunal to interpret
uniform legal texts/ (1992) 25th UNCITRAL Congress, pp. 50-54. Drobnig,
/Observations in Uniform Law in Practice/ at p. 306.
[61]: UNIDROIT and the EU
[62]: For references on interpretation of the /CISG/ by a supranational committee
of experts or council of "wise men" see Bonell, /Proposal for the
Establishment of a Permanent Editorial Board for the Vienna Sales Convention/
in /International Uniform Law in Practice/ Le droit uniforme international
dans la practique [Acts and Proceedings of the 3rd Congress on Private Law
held by the International Institute for the Unification of Private Law/ (Rome,
1987)], (New York, 1988) pp. 241-244
[63]: UNCITRAL Secretariat (1992) p. 255.
[64]: Erich Schanze, /New Directions in Business Research/ in Børge Dahl & Ruth
Nielsen (ed.), /New Directions in Contract Research/ (Copenhagen, 1996) p. 62.
[65]: See
[66]: See
[67]:
[68]: An excellent approachable introduction is provided by A.F. Chalmers /What
is this thing called Science?/ (1978, Third Edition 1999).
[69]: Karl R. Popper /The Logic of Scientific Discovery/ (1959).
[70]: Thomas S. Kuhn /The Structure of Scientific Revolutions/ (1962, 3rd Edition
1976).
[71]: Karl R. Popper /The Open Society and Its Enemies: Volume 1, Plato/ (1945)
and /The Open Society and Its Enemies: Volume 2, Hegel & Marx/. (1945)
[72]: FIDIC is the International Federation of Consulting Engineers
[73]: Concept originally developed by Lotfi Zadeh /Fuzzy Sets/ Information
Control 8 (1965) pp 338-353. For introductions see Daniel McNeill and Paul
Freiberger /Fuzzy Logic: The Revolutionary Computer Technology that is
Changing our World/ (1993); Bart Kosko Fuzzy Thinking (1993); Earl Cox The
Fuzzy Systems Handbook (New York, 2nd ed. 1999). Perhaps to the uninitiated an
unfortunate choice of name, as fuzzy logic and fuzzy set theory is more
precise than classical logic and set theory, which comprise a subset of that
which is fuzzy (representing those instances where membership is 0% or 100%).
The statement is not entirely without controversy, in suggesting the
possibility that classical thinking may be subsumed within the realms of an
unfamiliar conceptual paradigm, that is to take hold of the future thinking.
In the engineering field much pioneer work on fuzzy rule based systems was
done at Queen Mary College by Ebrahim Mamdani in the early and mid-1970s. Time
will tell.
[74]: See for example /Open Sources : Voices from the Open Source Revolution -
The Open Source Story/
[75]: Sale of goods (/CISG/), contract rules and principles (/PICC/), related
Arbitration, and the promotion of certain egalitarian ideals.
[76]: It is not as evident in the area of private international commercial
contract law the chosen focus for this paper, but appears repeatedly in
relation to other areas and issues arising out of the economics, technology,
law nexus.
==============================================================================
Title: Revisiting the Autonomous Contract - Transnational contracting,
trends and supportive structures
Creator: Ralph Amissah
Rights: Copyright (C) 2000 Ralph Amissah
Subject: law, international contracts, international commercial
arbitration, private international law
Publisher: SiSU http://www.jus.uio.no/sisu (this copy)
Date: 2000-08-27
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