Chapter 8. Transplantation of laws
| Pages | 111-127 |
| Author | Bruno Zeller |
Chapter8
Transplantationoflaws
A. Transplantation of uniforminternational law–
factsor fiction?
I. Introduction
So far, this book has attempted to discuss general principles of concern,
that is, areas where a contribution to uniformity could be improved. This
chapter will specifically investigate the impact of the CISG on the creation
of domestic commercial laws. It will focus on two recent law reforms,
namely UCC article 2 and the German law of obligations in the Civil Code
(Bürgerliches Gesetzbuch). Both domestic laws are of importance because
they are examples of how the CISG, which is recognised as the most
successful unification of commercial law, assists domestic laws in their
revision processes.
Today, it is almost compulsory that any revision of a domestic code or
introduction of new principles into a domestic system be based on
comparative studies. A particular model or function is attached to uniform
law. Domestic and international law are, so to speak, moving towards the
creation of a uniform commercial law that is equally applicable to foreign
and domestic litigants. The over-all aim would be to abolish the problem
that a domestic conflict potentially has a different outcome to an
international one, despite the facts being identical or the same.
The concept of fundamental breach is an excellent example of how a
persuasive concept in a uniform law may influence domestic as well as
international sets of rules: the UNIDROIT Principles307 or the Principles of
European Contract Law308 have adopted a very similar solution.309 The
same is true for the European Directive of 1999 on certain aspects of the
sale of consumer goods.310 Furthermore, the
OHADA (Organisation for the Harmonisation of Business Law in
Africa), a union of 16 African states, has adopted a common sales law,
which follows the CISG almost to the letter.311The German Civil Code
(Bürgerliches Gesetzbuch) may serve as a recent example of a domestic
sales law that has adopted this concept.312
A problem which needs to be addressed at the outset is the question of
the standing of domestic law when it tracks the uniform law of the CISG. It
is universally rejected that cases and material of domestic law tracking
provisions of the CISG can be used to interpret the CISG. Delchi Carrier
SpA v Rotorex Corp,313 as an example, has been universally condemned by
academics and courts as ‘not getting it right’.
The question remains what standing a transplantation of a CISG article
into domestic law has. The temptation is to allow domestic case law and
material to assist interpretation of the CISG, as the domestic law originates
from a common source, namely the CISG.314 However, such a conclusion is
not correct. The CISG might originally have influenced the drafting of a
particular domestic provision, but the social context, that is, the rhetorical
community, is not the same and hence the outcome is potentially not the
same. The philosophical base on which the new transplanted article rests is
different to the one of the CISG, with the consequence that even
transplanted laws must be rejected to serve as guides in the interpretation of
the CISG.
This said, it must be pointed out that transplantation of a uniform nature
will contribute towards unification of laws in general. It would be trite to
argue thatbecause the laws are similar or even the same the outcome will be
the same. However, what can be argued is that an interpretation of
transplanted law should not be fundamentally different to outcomes which
the same law achieves in the CISG. A narrowing of the gap between
domestic and international laws has been achieved. Domestic law is
exposed to principles of international law and it is safe to argue that
differences would be minimal in outcomes.
II. Unification and transplantation
Recently, some important modernisations of domestic law have taken
place. The most notable are the introduction of the new Chinese Contract
law in 1999, the revision of article 2 UCC and, in 2002, the modernisation
of the German law of Obligations within the BGB. This in itself is of no
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting