Chapter 2. Uniformity of laws Mapping the territory
| Pages | 13-32 |
| Author | Bruno Zeller |
Chapter2
Uniformityoflaws
Mappingtheterritory
A. Uniformity of laws
I. The twentieth century –the century of
internationalisation
The internationalisation of trade has raised the question of how such
trade can be conducted in the most efficient manner. There is no debate that
the beginning of the twentieth century has seen some significant law
reforms in the area of international trade law. The attacks on the
domestically dominated system of contract law, which did not distinguish
between municipal contracts and international contracts, have been fought
and won by the internationalists. It is now clear that:
. . . the nineteenth century rules the liberals have been attacking form a
complex intellectual system whose vitality even in the last quarter of the
twentieth century is as much or more the product of its ideological power as
of the direct material dominance of particular economic or political
interests.1
As a result of the ideological shift in thinking, it has been questioned:
‘why is there international uniform commercial law rather than nothing?’2
The answer depends on who is asking the question. From a legal-
philosophical point of view, the response could well be that it is a vision
that could be called normative, an emphasis on a principle of thought that
considers uniform laws to be a virtue.3
Practically speaking, it is universally accepted that legal risks and costs
are reduced if there would be one law and one judiciary dealing with
international trade. There is equally no debate that the creation of a single
judiciary worldwide will never eventuate. Hence, the only practical
possibility is the creation of a universal trade law which is applied in all or
at least in most domestic courts.
One possible solution is the creation of conventions, which are open for
accession by individual nations and which become part of domestic law.
This book attempts to have a fresh and contentious look at uniform laws
– within the meaning of ‘unified laws’ – and specifically at the United
Nations Convention on Contracts for the International Sale of Goods
(CISG). The starting point in this investigation is the conclusion Marquis
reached in his study of international uniform commercial law. He noted:
For some time, the contemporary world has been undergoing transition. In
its simplest expression, this transition expresses a changeover from
modernity to a second modernity. This changeover is currently taking place.
It is real and current. It represents an interval between a starting point and
a target point. Moreover, the intermediate period that we are currently
undergoing is marked by a strong ambivalence.4
Arguably, uniform laws – and the CISG is no exception – are merely
progressing towards a target point but have not reached that point yet. This
book will show that the CISG is still capable of being shaped and enlarged,
as it is not a document frozen in time. Uniform laws are living documents,
and their implementation is merely an intermediate period.
II. Uniform legislation – just the first level towards
unification of laws
I. Legislation and interpretation – first and second
level
The obvious key criterion to the success of such a law is that it should be
uniformly applied. The drafters of the CISG attempted to facilitate
uniformity by including article 7, the interpretative article, into the regime
of the convention. Article 7(1) in the relevant parts states that ‘regard is to
be had to its international character and to the need to promote uniformity
in its application and the observance of good faith’. The importance of this
article is highlighted by the fact that it has been copied into various other
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