“Unification and Harmonisatton” of the Rules of Law

AuthorJohn Goldring
Published date01 September 1978
Date01 September 1978
DOI10.1177/0067205X7800900302
Subject MatterArticle
"UNIFICATION AND HARMONISATION"
OF
THE
RULES
OF
LAW
By
JOHN
GoLDRING·
In
Australiathere are nine bodies
of
legislation; Commonwealth,
State and Territorial. The laws within each
of
these systems
may
differ from each other in significant ways. Such differences,
especially when occurring in areas
of
Utechnical law",
may
cause
considerable inconvenience to Australians and
to
their legal
advisers. In social and economic terms, for many purposes Australia
is
asingle nation, and
is
not
divided by State boundaries. Enactment
of
uniform laws in each part 0/ Australia could lead to much
greater convenience for businesses, individual citizens and lawyers.
This article examines some
of
the ways in which international
organisations and bodies within other federal nations have been
working towards the unification and harmonisation
of
rules 0/
law, in selected areas. From this examination, some parallels are
drawn with the situation in Australia. The article also makes some
suggestions for greater uniformity
of
laws in Australia against the
political background which
may
explain
why
law in Australia has
come to be diverse.
1.
Diversity
of
Rules and the Reasons for Unification
of
Law
The modern "'orld includes alarge number of national states. Each
has adifferent legal system. Some, which are federal states, have a
number of legal systems. There are also some supra-national laws, such
as those of the European Communities, which, unlike the rules of
public international law, are enforceable by sanctions. The legislative
sovereignty of anational state, of acomponent of afederation,
or
of a
multi-national organisation, that
is,
the power to make rules binding on
people within its relevant territory,
is
inextricably linked to political
power. Law-making power is aquintessential element of national
identity and autonomy, and governmental policies are implemented by
laws.
Untrammelled legislative power exercised for political reasons leads
to agreat diversity of rules which in
turn
can lead to severe hardship
and inconvenience where atransaction involves more than one legal
system.
In
the modern world, communication
is
easy, population and
money are mobile, and it
is
increasingly likely that more than one legal
system will be involved in any given transaction.
*B.A., LL.B. (Syd.), LL.M. (Col.); College Fellow in Law, School
of
Adminis-
trative Studies, Canberra College
of
Advanced Education. Work on this article was
completed while the author was aVisiting Fellow
at
the Secretariat
of
UNIDROIT,
Palazzo Aldobrandini, Rome, Italy, from January to July 1977.
284
1978] Unifieation and Harmonisation 285
In
international trade
or
tourism the following example could easily
occur. A, aresident of Victoria, draws acheque in Australian dollars
on aVictorian bank payable in Melbourne in favour of B, aresident
of Italy. Adelivers the cheque in Rome. There Csteals the cheque
from B, forges B's indorsement and negotiates it to Dwho takes the
cheque in good faith
~nd
without notice of any defect in title, for
valuable consideration. The bank pays the cheque in good faith and
debits A's account. The rights and duties between the different parties
will differ according to whether the law of Victoria
or
the law of Italy
applies. The Victorian law (based on the Bills of Exchange Act 1906
(Cth))
does not protect the holder in due course of acheque against
the consequepces of forgery, but Italian law does. Both potentially
applicable legal systems give asolution to the problem but they are
different. The question
is,
which of the legal systems applies?
The solution
is
determined by the conflict of laws rules of the place
where it
is
proposed to bring an action. These rules are exceedingly
technical and conceptually involved. They can,
inde~d
do, fascinate
lawyers but they irritate clients because of the cost, delay, and especially
the uncertainty involved. Conflicts rules, like any other part of the law,
differ considerably between legal systems.
But
in any legal system,
conflicts problems are likely to lead to greater uncertainty than usual.
This makes the situation unpalatable to commercial people who value
certaintyhighly,
as
it gives them asounder basis for the exercise of their
business judgment. Any development which will make an area of law
more certain and predictable has value.
Uniform laws aim primarily at the avoidance of conflict of laws
situations. The reason for the support for the movement towards
unification and harmonisation of rules of law
is
therefore essentially
practical. If, in the example above, the laws of Italy and Victoria were
the same, there would be aclear solution to the problem of rights
which would apply no matter where an action was brought. The result
may not be favourable to aparticular party
or
sound, but it would be
clear, and,
as
Julius Stone has said, it may be better
that
aquestion be
settled than it be settled right;l this
is
acommon attitude amongst
business people. There
is
adefinite movement for such "unification and
harmonisation" of the rules of law.2One of the reasons why the United
1
"Non
Liquet and the Function of Law in the International Community" (1959)
35 British Yearbook
of
International Law 124, 149-150.
2Arecent Australian account
of
some aspects is Walsh and Ryan, "Harmonis-
ation and Standardisation
of
Legal Aspects
of
International Trade" (1977)
51
A.L.J. 608. The most recent accounts of the movement for international unification
of
law are to be found in International Association of Legal Science, International
Encyclopedia
of
Comparative Law, Vol. II, Ch.
5,
"The International Unification
of Private law" by Rene David, (henceforth cited as "David, (1971)") which must
be read in the
l,ight
of
Professor David's commitment to an idealist basis for the
unification of law, but which
is
an
outstanding historical and analytical account
of
the movement, by one
of
the world's great comparative lawyers;
an~
asymposium
286 Federal
Law
Review
[VOLUME
9
Nations General Assembly established the United Nations Commission
on International Trade Law (UNCITRAL)
was
the realisation by many
nations that diversity between the rules of law of various legal systems
was aconsiderable impediment to international trade.
Where there
is
aclash of legal systems which may govern aparticular
transaction, the conflicts lawyers have their own solution which
is
to
provider better, simpler conflicts rules.3This aim
is
difficult, if not
impossible, to achieve,
as
conflicts situations are always complex.
Other lawyers, mainly comparative lawyers, have suggested asolution
through unification
or
harmonisation of the rules of law within the
several legal systems. They see ameans by applying acomparative
analysis of laws to derive common features which can provide the
foundation of aset of rules acceptable to anumber of states. This set
of rules, as virtually all "unificationists" are at pains to point out,
is
not a"supra-national" law set above the national law of
anyone
state,4 though at least one comparative lawyer has described abody of
immanent principles of law independent of national boundaries which
should indicate the direction of the uniform laws.o
Political nationalism
is
most important in the modern world; people
are nationalistic, often fiercely
so.
They
see
the laws of their country
as the expression of the will of the people.6Unity and harmony of rules
of law can only be achieved
or
maintained if each legislature agrees
to enact unified rules
or
to permit such arule to be applied in its
territory. This means thatit must refrain from exercising its independent
legislative power in away
that
will destroy the unity of those rules.
Thus it must agree, to agreater
or
lesser extent, to the surrender of
some of its legislative authority.
Quite independently of legislative action, in some areas of law a
degree of uniformity has been achieved by the action of private
individuals.
In
the areas of both mercantile law and maritime law, rules
of law have been derived from custom. Merchants and mariners have
travelled widely from one political state to another, carrying acommon
set of assumptions which have passed into the legal systems of the
in
(1968) 16 American Journal
of
Comparative Law, especially Hay, "The
International Unification of
Law-A
Symposium"
1,
and Graveson, "The Inter-
national Unification
of
Law" 4. Rodino, "Outlines for aBibliography
on
Uniform
Law" (1973) 66 Law Library Journal 272 refers
to
the basic works
on
the subject.
3This
is
the aim of the Hague Conference on Private International Law, which
is
discussed, infra p. 295.
4David, (1971), 7fI., 210 fI.; Matteucci, "UNIDROIT, The First Fifty Years"
[1976] 1Uniform Law Review 15, 19;
ct.
Kaiser, "Transnational Relations as a
Threat to the Democratic Process" (1971)
25
International Organization 706.
°David, (1971
);
also ''The Methods
of
Unification" (1968) 16 American
Journal
of
Comparative Law 13.
6This
is
the Volksgeist theory, first enunciated by von Savigny, whose
Yom
BeTuf unserer Zeit fur Gesetzgebung und Rechtswissenschaft was published in 1814.
For
an
account
of
Savigny's theories see Allen, Law in the Making (7th ed. 1966)
87-89;
or
Stone, Social Dimensions
of
Law and Justice (1966)
Ch.2.

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