"... Why are the realists right? We lawyers have to work with blunt, unreliable tools - words!...[W]e must work with words - mushy, ambiguous things even for ordinary communications ..." 2
There is no doubt that the choice and application of words is the essence of the lawyers' function, 3 yet words are the very "rascals" 4 that the lawyer cannot with an absolute degree of certainty dominate or confine. Lawyers, recognizing the significance of words, particularly in the context of commercial law, have written volumes on the impact and choice of words in contract negotiations and drafting. Lists of faux amis have been reiterated to stress that undue reliance should never be placed on a mere word. 5 The indeterminacy of words and their meanings provides both opportunities and limitations. 6 When dealing with parties from different countries with varying legal systems, cultures and languages, we are further warned that words are infused with meaning based on the experiences and backgrounds of their users, and often cannot be relied upon to have any fixed interpretation without further clarification. [page 223]
The complexity of issues that arise from ambiguities in language extend much further than contract negotiating and drafting. In international sales law, 7 such ambiguities are a stumbling block to the uniform interpretation of the law. 8 As an example, even though the drafters of our uniform international sales law - the UN Convention on Contracts for the International Sale of Goods (CISG) - took great strides to root out words that carry "domestic baggage," 9 courts and arbitration panels still struggle with the words, and their legal implications, when they interpret and apply this international law. The conflict between infusing domestic notions into legal terminology and the struggle to decipher the intent and appropriate application of international sales law autonomously has created an environment that often cannot provide requisite assurances of predictability of outcome in the application of the law.
"The selection of uniform rules and uniform laws is not enough, as this does not ensure their uniform application, without which the purpose of establishing uniform law is largely defeated." 10 Attainment of this goal would increase reliance on the law in the world of practice. Lawyers like to play by rules that ensure that, if the game is played a certain way, a reasonably predictable outcome will be guaranteed. Lawyers would be less quick to opt out of uniform international sales law if they could be more certain of outcomes.
The focus of this article is not on the weaknesses of words and their potential ability to cause confusion at the various stages of the legal process. Rather, it concentrates on the power of words and their potential to foster the uniform interpretation of international sales law. The analysis takes a somewhat unorthodox approach, however, focusing on the research tools we use to obtain knowledge of international sales law. Tools currently in place may at times hinder strides towards uniformity in the substantive interpretation of international sales law. When persons use the same methodology to access the same information, [page 224] they also conceptualize the law in the same framework. 11 Thus, the structure for the retrieval of information provides a paradigm for thinking about the law itself. 12 Currently, neither a uniform methodology nor a uniform structure exists for the retrieval of information on international sales law. 13 The creation of a controlled indexing language can create the structural backbone for retrieval systems in international sales law and, accordingly, foster the substantive development of the law.
This article explores the impact that information retrieval systems 14 developed over the last century, in particular the system conceived by West Publishing Company, have had on the uniform application and harmonization of US law. It also suggests that international sales law is at the brink of the same frontier US law was at a century ago, thus providing a unique stage in time where structuring the dissemination of information can have a long-term impact on the substantive development and interpretation of international sales law. Lastly, the article discusses various tools that could be used to create a system of information retrieval and evaluates their potential effectiveness.
* Vikki M. Rogers: This article is dedicated to my parents, Danielle and Robert Rogers, for their unrelenting patience during the several months that they had to hear about this article and for their ability to always put things back into perspective. Thank you.
** Albert H. Kritzer is Executive Secretary of the Institute of International Commercial Law of the Pace University School of Law. Vikki M. Rogers is an Associate at Shearman & Sterling, Frankfurt, Germany office and a Fellow of the Institute of International Commercial Law of the Pace University School of Law.
1. The authors gratefully acknowledge Professor Marie S. Newman, Director of the Law Library and Associate Professor of Law at Pace University School of Law for her advice and guidance in the preparation of this article, particularly of the section 'Development of Case Reporters in England and the United States," of which she drafted portions. We would also like to thank Ralph Amissah for information he provided on information technology and the possible applications of a information retrieval thesaurus to computer search engines. Additionally, the authors acknowledge and thank Professor Bella Hass Weinberg, St. John's University, for her review and suggestions to the paper.
2. John O. Honnold, The Sales Convention in Action - Uniform International Words: Uniform Application?, 8 J.L. & Com. 207 (1988); also available at ‹http://www.cisg.law.pace.edu/cisg/biblio/honnold-sales.html› (last modified July 28, 2000). See also for similar sentiment, Roy Goode, Commercial Law 23 (2d ed.1995) ("Those whose business it is to work with words soon acquire an appreciation of the limitations of language.")
3. "How forcible are the right words." Job 6:25.
4. William Shakespeare, Twelfth Night act III, sc. 1.
5. "Words strain; Crack and sometimes break; Under the burden." T.S. Eliot, Four Quartets (1943).
6. Larry A. DiMatteo, The Law of International Contracting 13 (2000).
7. The concept of "international sales law" is intended by the authors to include, inter alia, the UN Convention on Contracts for the International Sale of Goods (CISG), UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles), the Principles of European Contract Law (PECL) and the general principles of international commercial law (lex mercatoria).
8. "[U]niformity does not automatically result from agreeing on the same words for international rules; the objectives of the agreement can be undermined by different national approaches to interpreting and applying the uniform international rules." John O. Honnold, Uniform Words and Uniform Application. The 1980 Sales Convention and International Juridical Practice 115, 116 in Peter Schlechtriem (ed.), Einheitliches Kaufrecht und nationales Obligationenrecht (1987).
9. John O. Honnold, Uniform Laws for International Trade: "Care and Feeding" for Uniform Growth, 1 Int'l Trade & Bus. L.J. 1 (Australia 1995); also available at ‹http://www.cisg.law.pace.edu/cisg/biblio/honnold3.html› (last modified September 24, 1998).
10. Ralph Amissah, The Autonomous Contract: Reflecting the Borderless Electronic-Commercial Environment in Contracting, (visited May 1, 2001) ‹http://www.jus.uio.no/lm/the.autonomous.contract.07.10.1997.amissah/doc.html›.
11. See generally, Robert C. Berring, Collapse and Structure of the Legal Research Universe: The Imperative of Digital Information, 69 Wash. L. Rev. 9, 19 (1994).
12. 12. Id.
13. "Whenever codes have been drafted, or digests and encyclopedias of law compiled, from the time of the Romans to the present, the first problem that presented itself was always that of classification." Charles C. Ulrich, A Proposed Plan of Classification for the Law, 34 Mich. L. Rev. 226 (1935). Although there have been strides to make the information available (without any distinct methodology to its dissemination), the international commercial law community has not collectively engaged itself in discussions on the classification of the CISG, UNIDROIT Principles or Principles of European Contract Law.
14. Information retrieval systems include those published in print and electronic forms, such as the West digest system, WESTLAW and LEXIS.
Eric von Hippel
Erik S. Raymond