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The Development of Uniform Laws - a Historical Perspective, 14 Pace Int'l L View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by DigitalCommons@Pace Pace International Law Review Volume 14 Article 7 Issue 1 Spring 2002 April 2002 The evelopmeD nt of Uniform Laws - A Historical Perspective Bruno Zeller Follow this and additional works at: http://digitalcommons.pace.edu/pilr Recommended Citation Bruno Zeller, The Development of Uniform Laws - A Historical Perspective, 14 Pace Int'l L. Rev. 163 (2002) Available at: http://digitalcommons.pace.edu/pilr/vol14/iss1/7 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. THE DEVELOPMENT OF UNIFORM LAWS - A HISTORICAL PERSPECTIVE Dr. Bruno Zellert I. Introduction ....................................... 163 II. A Description of the Problem ...................... 164 III. The Development of Uniform Laws - A Historical Perspective ........................................ 166 A. The Effects of Globalization ................... 167 B. Unification of Laws ............................ 168 C. The Influence of Autonomous Concepts on the Harmonization Process ........................ 171 D. The Autonomous Contract ..................... 174 IV . Conclusion ......................................... 176 I. INTRODUCTION Since the inception of the CISG, much has been written on issues such as good faith, gap filling and fundamental breach, just to mention a few of the relevant issues. The "micro" aspect of the CISG is being explored with great vigor. This paper looks at the "macro" issues of international private law in order to re- focus our attention and to take a fresh look at how the CISG best serves its constituency. This article is by no means a com- plete analysis of basic legal concepts. The purpose of this paper is to allow academics and the profession to take a fresh look at uniform international laws in general, and the CISG in particu- lar. It is hoped that this paper will stimulate interest in placing the CISG into a wider context such as within the globalization debate or wider issues of an interpretational methodology of in- ternational instruments. t Lecturer of Law, Victoria University of Technology, Melbourne. 1 PACE INT'L L. REV. [Vol. 14:163 II. A DESCRIPTION OF THE PROBLEM The United Nations Convention on Contracts for the Inter- national Sale of Goods (CISG)l was promulgated in 1980 and so far 60 countries have ratified the CISG. Through that process the CISG became part of domestic law. As such, any interpreta- tion and application will be effected through domestic courts and tribunals. The application of international law through do- mestic courts poses a problem that can be simply illustrated by two cases using the parol evidence rule. 2 In both instances the courts were asked whether a party could rely on statements made by the parties, which were not contained in the written contract. In MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino, S.P.A. ,3 the court held, pursuant to CISG Ar- ticle 8, that such statements were to be taken as expressions of the subjective intent of parties and were to be included in the contract. On the other hand, in Beijing Metals & Minerals Im- port/Export Corp. v. American Bus. Ctr. Inc.,4 the court stated that the parol evidence rule would apply regardless of whether 5 Texas law or the CISG governed the dispute. The argument of many writers is that the CISG should be interpreted within its "Four Corners" without regard to domes- tic concepts and principles. Most importantly, it should be inter- preted as an international standard. Furthermore, the methods of interpretation are not to be found within domestic techniques but are subject to a new autonomous method of interpretation. CISG Articles 7 and 8 lay down the interpretational rules and will play a pivotal part in the development of a methodology of interpretation. For that reason, an understanding of CISG Arti- cles 7 and 8 is essential; otherwise, the important principle of international uniformity cannot be achieved. In other words, the CISG will not be applied in a manner contemplated by its legislators. International case law must be analyzed to investi- 1 See United Nations Convention on Contracts for the International Sale of Goods, Apr. 11, 1980, U.N. Doc. A/CONF. 97/18, Annex I at art. 14(1), reprintedin 19 I.L.M. 668 [hereinafter CISGI. 2 The parol evidence rule is not discussed in detail in this paper. 3 144 F.3d 1384 (11th Cir. 1998), available at http://cisgw3.law.pace.edu/ cases/980629ul.html. 4 993 F.2d 1178 (5th Cir. 1993). 5 See id. at 1183 n.9. http://digitalcommons.pace.edu/pilr/vol14/iss1/7 2 20021 DEVELOPMENT OF UNIFORM LAWS gate how courts and tribunals have followed the mandate of CISG Articles 7 and 8.6 Any interpretation or application of the CISG must concern itself with comparative analysis, statutory interpretation and questions of contract theory. These issues should be placed within the context of internationalization and globalization. However, it is not the purpose of this paper to discuss the major ideas on the above topics in detail. 7 Some general remarks must be made to understand the basic underlying ideas. It is impor- tant to realize that the concept of globalization is not to be con- fused with internationalization. Internationalization is understood to refer to cooperative activities of national actors beyond the nation state.8 Globalization is different: It is a multifaceted phenomenon that escapes easy definition.... It is sufficient to observe that it is in the present stage of develop- ment of the international system that globalization has been fully recognized as a specific feature of international relations, which impact the political, economic, ecological, social and cultural life of societies around the globe in an unprecedented manner.9 Whether the development of private international law is to be classed as an expression of internationalization or globaliza- tion is not important in this context. Of importance is the recog- nition that globalization created a new perception of the political process in which UNCITRAL 10 and other bodies could liberalize domestic laws and move beyond national borders. In 6 German, Swiss and Austrian courts do not generally disclose the parties to a dispute. In these cases, only the court of the relevant country is listed. Also, common law decisions are discussed in depth, whereas civil law decisions are likely to be more factual and therefore analysis is at times sparse. Opinions of the Cour de Cassation of France provide prominent examples of the latter. 7 For a more detailed discussion, see R. GILPIN, THE CHALLENGE OF GLOBAL CAPITALISM (2000); B. S. MARKENSIS, FOREIGN LAW AND COMPARATIVE METHODOL- OGY, (1997); J. BRAITHWAITE & P. DRAHos, GLOBAL BUIsNEss REGULATION (2000); C. ARUP, THE NEW WORLD TRADE ORGANIZATION AGREEMENTS: GLOBALIZING LAW THROUGH SERVICES AND INTELLECTUAL PROPERTY (2000). 8 See J. DELBROCK, STRUCTURAL CHANGES IN THE INTERNATIONAL SYSTEM AND ITS LEGAL ORDER: INTERNATIONAL LAW IN THE ERA OF GLOBALIZATION (2001); 1 Schweizerische Zeitschrift fiir internationales und europaisches Recht, 1, 13. 9 DELBROCK, supra note 8, at 14. For a comprehensive analysis, see D. HELD ET AL., GLOBAL TRANSFORMATION ch. 1 (1999). 10 See generally United Nations Convention on International Trade Law at http://www.uncitral.org/en-index.htm 3 PACE INT'L L. REV. [Vol. 14:163 essence a "qualitative leap in the course of history"" has been observed. III. THE DEVELOPMENT OF UNIFORM LAWS - A HISTORICAL PERSPECTIVE Arguably, the single most noticeable development in the last forty years in economic terms is globalization, which has naturally increased the importance of cross-border trade. These developments have contributed greatly to the internationaliza- tion of trade. In 1935, a statement that the world was divided into States with their own independent economic, social and legal systems would not have attracted much attention. In 1935, a revolution in substantive law had started, which has not yet run its course. Ernst Rabel commenced the debates regarding the introduction of a worldwide uniform sales law. 12 Private international law was considered to be complicated and abstract and had the rep- utation of being the "nuclear physics of jurisprudence."' 3 Schol- ars were debating the possibility of applying foreign laws within their jurisdiction. Uniformity was not the issue but rather the question of the correct application of the relevant domestic law. The first tentative steps toward unified international laws resulted in the realization that the conflict of law rule using na- tionality as a connecting factor would lead to different results according to different domestic laws in use. In France and Italy domestic law was always kept in "reserve" should the judge ex- perience problems applying foreign laws. 14 Kotz, among others, strongly advocated that the solution to the problem is the crea- tion of "general principles." These general principles could be used to create the foundation for harmonization or unification of international laws.1 5 Significantly, he argued that the teasing out (Ermittlung)of general principles is not only the task for 11 DELBROCK, supra note 8, at 2. 12 See ERNST RABEL, DER ENTWURF EINES EINHEITLICHEN KAUFGESETZES (1935); 9 Rabels Zeitschrift fir ausldndisches und internationalesPrivatrecht 1, at 1. 13 H. KOTZ, ALLGEMEINE RECHTSGRUNDSATZE ALs ERSATZRECHT (1970); 34 Rabels Zeitschrift fur Auslandisches und InternationalesPrivatrecht 663. 14 See id. at 667. 15 See id. at 672. http://digitalcommons.pace.edu/pilr/vol14/iss1/7 4 2002] DEVELOPMENT OF UNIFORM LAWS the legal academics but also for judges. 16 These issues have now come to fruition with the creation of international unified laws in the form of treaties and model laws such as the CISG.
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