Do we need a global commercial code ?

Uniform Law Review

Volumn 5, Issue 3, 2000, Pages 469-481

  Bonell, Michael Joachim ^a  

^a SAPIENZA UNIVERSITY OF ROME   (Italy)

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EID: 85017102409     PISSN: 11243694     EISSN: 20509065     Source Type: Journal    
DOI: 10.1093/ulr/5.3.469     Document Type: Article

References (36)

1. Cf. Progressive codification of the law of international trade, Note by the Secretariat of the International Institute for the Unification of Private Law U(NIDROIT), in United Nations Commission on International Trade Law, Yearbook, Volume I: 1968-1970, 285 et seq.
2. “The time has come […] to proceed beyond the stage of partial and fragmentary unification and undertake the systematic codification of at least the basic principles of the law of international trade. This would lay the foundations for any subsequent regulation of the major legal institutions pertaining to this law, including those which have already been unified”: cf. Progressive codification, supra note 1, 287.
3. nd ed. (1997), 19-21.
4. th Biennial Meeting of the International Academy of Commercial and Consumer Law, Pennsylvania State University Dickinson School of Law, (9-13 August 2000).
5. nd ed. (1981), 29-31.
6. Apart from CISG, mention may be made of the Limitation Convention (1974/1980), the Hamburg Rules (1978), the UNCITRAL Model Arbitration Law (1985), the UNCITRAL Bills and Notes Convention (1988), the UN Terminal Operators Convention (1991), the UNCITRAL Credit Transfer Law (1992), the UNCITRAL Model Procurement Law (1994), the UN Guarantee and Stand-by Convention (1995), the UNCITRAL Electronic Commerce Law (1996), the UNCITRAL Model Insolvency Law (1997).
7. Cf. General Assembly Resolution 2205 (XXI) of 17 December 1966.
8. See G. HERRMANN who openly speaks of “inspiring aspects of the UCC experience”; in the past, among others, E.A. FARNSWORTH, “The Uniform Commercial Code and the Global Unification of International Trade Law”, in: C.M. Schmitthoff - K.R. Simmonds (eds.), International Economic and Trade Law (1976), 97 et seq. (“[...] the Code may advance international codification [...] by serving as an example of a successful unification of the laws of many different jurisdictions”); C.M. SCHMITTHOFF, supra note 5, 30, (“[The] attempt to draft a world code on international trade law [...] is not an idle dream [...] there is the example of the Uniform Commercial Code of the United States. It started as an academic venture but became reality when it was adopted by 49 of the 50 jurisdictions of the United States”).
9. There are those who emphatically refer to the UCC as “the most progressive commercial enactment of the Western world [...] [which] has three outstanding merits: it is modern in spirit, pragmatic in treatment and comprehensive” (cf. C.M. SCHMITTHOFF, supra note 5, 14-15).
10. (cf. J.O. HONNOLD, “The Influence of the Law of International Trade on the Development and Character of English and American Commercial Law”, in C.M. Schmitthoff (ed.), The Sources of the Law of International Trade (1964), 86).
11. Similarly, with respect to Art. 9 dealing with security interests, cf. R.C.C. CUMING, “The Internationalisation of Secured Financing Law: the Spreading Influence of the Concepts UCC, Article 9 and its Progeny”, in R. Cranston (ed.), Making Commercial Law. Essays in Honour of R.M. Goode (1997), 499 et seq
12. (cf. “General Comment of the National Conference of Commissioners on Uniform State Laws and the American Law Institute”, in: Uniform Commercial Code 2000 Edition, 17 et seq. at 18).
13. J.O. HONNOLD, supra note 10, 70 et seq. at 83. For similar remarks, more recently, A. ROSETT, Improving the Uniform Commercial Code, Centro di studi e ricerche di diritto comparato e straniero, Saggi, Conferenze e Seminari, 29 (1997), 6-7 (“The title Uniform Commercial Code is somewhat misleading [...]”).
14. See, also for further references, R.M. BUXBAUM, “Is the Uniform Commercial Code a Code?”, in U. Drobnig - M. Rehbinder (eds.), Rechtsrealismus, multikulturelle Gesellschaft und Handelsrecht (1994), 197 et seq.
15. rules to commercial contracts different from the general rules contained in the respective civil codes are France, Germany and Austria, while the monistic approach is followed, for instance, by Switzerland, Italy and more recently by the new Dutch Civil Code: cf. D. TALLON, International Encyclopedia of Comparative Law, Vol. VIII, Specific Contracts, Chapter 2, “Civil and Commercial Law”, Tubingen/The Hague/ Boston/London 1983, 10 et seq.
16. Cf. Art. 2, lit. a, CISG: “This Convention does not apply to sales […] of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use.” Art. 1(2)(a) of the Factoring Convention and Art. 1(4) of the Leasing Convention use similar language, without however including an escape clause.
17. H. KRIPKE, “Principles Underlying the Drafting of the U.C.C.”, in: University of Illinois Law Forum, 1962, 322. More recently in the same sense, see e.g. J.F. DOLAN, “Fundamentals of the Uniform Commercial Code”, in: A. Mugasha (ed.), Perspectives on Commercial Law (2000), 3 et seq. at 24 et seq.
18. Cf. L. EDWARDS - C. WAELDE, “Introduction”, in L. Edwards - C. Waelde (eds.), Law and the Internet. Regulating Cyberspace (1997), 3
19. similarly H. KRONKE, “Applicable Law in Torts and Contracts in Cyberspace”, in: K. Boele-Woelki - C. Kessedjian (eds.), Internet: Which court decides? Which law applies? (1998), 65 et seq. 74 et seq,;
20. C. KESSEDJIAN, “Rapport de synthèse”, in K. Boele-Woelki - C. Kessedjian (eds.), op. cit., 149 et seq.;
21. P. MANKOWSKI, “Das Internet im Internationalen Vertrags- und Deliktsrecht“, in 63 RabelsZ (1999), 203 et seq.
22. In the sense that “[i]n an electronic environment [...] distance, location and national boundaries are meaningless”, but against the idea of a lawless cyberspace, see recently J. DING, E-Commerce. Law & Practice (1999), 74 et seq.
23. See, for instance, Art. 38 of the new Chinese Contract Law of 1999 dealing with contracts imposed by State mandatory plans as compared to Art. 126 stressing the principle of party autonomy in the context of truly international commercial contracts.
24. For further references see M.J. BONELL, An International Restatement, supra note 3, 49-50.
25. For this language, see Art. 1 of the 1980 EEC Convention on the Law applicable to Contractual Obligations, and Art. 1 of the 1986 Hague Convention on the Law applicable to Contracts for the International Sale of Goods (where, however, the further qualification is to be found according to which such a conflict of laws situation may not arise solely from a stipulation by the parties as to the applicable law, even if accompanied by a choice of court of arbitration).
26. Cf. Art. 1492 (as amended by Decree No. 81-500 of 12 May 1981) of the French Code of Civil Procedure: “[e]st international l'arbitrage qui met en cause des intérêts du commerce international”).
27. rd Congress held by the International Institute for the Unification of Private Law (Rome, 7-10 September 1987) (1988), 433 et seq.
28. See also the explanatory notes to the revised version of §1-103 (combining subsections (1) and (2) of the current §1-102 with the current §1-103) as contained in ALI, Uniform Commercial Code, Revised Article 1, General Provisions, Members Consultative Group Draft (February 2000), 2: “The Uniform Commercial Code is not intended to be a comprehensive Code in the civil law tradition. Rather it was drafted against the backdrop of existing bodies of law, including the common law and equity, and relies on those bodies of law to supplement its provisions in many important ways. At the same time, the Uniform Commercial Code is the primary source of commercial law in areas that it governs […]”.
29. nd ed. (1998), 43, 65.
30. For further information, see M.J. BONELL, “The UNIDROIT Principles of International Commercial Contracts: Nature, Purposes and First Experiences in Practice”, in Center for Transnational Law (ed.), Transnational Law in Commercial Legal Practice (1999), 7 et seq. at 24-25) (accessible on the UNIDROIT website at http://www.unidroit.org/english/principles/pr-exper.htm).
31. For an analysis of the most significant decisions cf. M.J. BONELL, “The UNIDROIT Principles and Transnational Law”, in Uniform Law Review 2000, 199 et seq. (also accessible on the UNIDROIT website at http://www.unidroit.org/english/publications/review/articles/2000-2.htm). For a collection of decisions and arbitral awards referring in one way or another to the UNIDROIT Principles cf. UNILEX II - International Case Law and Bibliography on the UNIDROIT Principles of International Commercial Contracts (Transnational Publishers, 2000 (under press)).
32. Cf. The Ministry of Defence and Support for the Armed Forces of the Islamic Republic of Iran v. Cubic Defense Systems, Inc., 29 F-Supp. 2d 1168 (SDCal 1998), upholding the ICC Award No. 7365 of 5 May 1997, in which the Arbitral Tribunal held that since the parties have agreed on the application of general principles of international law and trade usages, it should be guided by the UNIDROIT Principles as to the contents of such rules:
33. see M.J. BONELL, “UNIDROIT Principles: A Significant Recognition by a United States District Court”, in: Uniform Law Review 2000, 651 et seq.
34. O. LANDO, “Why Codify the European Law of Contract?”, in 5 European Review of Private Law (1997), 525 et seq.
35. M.J. BONELL, “The Need and Possibilities of a Codified European Contract Law”, ibid., 505 et seq.
36. Since these reservations are exclusively of a political nature, obviously they have nothing to do with the outstanding work on the preparation of the envisaged European Civil Code which is currently being carried out by a team of eminent scholars from all over Europe, led by Professor Christian von Bar. For an account of the latest results of the Group's work as well as of the first positive reactions on the part of the European Parliament and the European Commission, see Ch. VON BAR, “The Study Group on a European Code”, in: Tidskrift Utgiven av Juridiska Föreningen i Finland 2000, 323 et seq.