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diff --git a/data/samples/wrapped/en/autonomy_markup0.sst b/data/samples/wrapped/en/autonomy_markup0.sst new file mode 100644 index 0000000..0482b46 --- /dev/null +++ b/data/samples/wrapped/en/autonomy_markup0.sst @@ -0,0 +1,1089 @@ +% SiSU 2.0 + +@title: Revisiting the Autonomous Contract + :subtitle: Transnational contract law, trends and supportive structures + +@creator: + :author: Amissah, Ralph + +@date: + :published: 2000-08-27 + +@rights: + :copyright: Copyright (C) Ralph Amissah + +@classify: + :topic_register: SiSU markup sample:article;law:international:commercial arbitration|uniform law|harmonization;private law;arbitration:international commercial + :subject: international contracts, international commercial arbitration, private international law + +@make: + :italics: /CISG|PICC|PECL|UNCITRAL|UNIDROIT|lex mercatoria|pacta sunt servanda|caveat subscriptor|ex aequo et bono|amiable compositeur|ad hoc/i + :num_top: 1 +% :omit: minitoc + +% (Draft 0.90 - 2000-08-27) + +:A~ @title @author~{* Ralph Amissah is a Fellow of Pace University, Institute for International Commercial Law. http://www.cisg.law.pace.edu/ \\ RA lectured on the private law aspects of international trade whilst at the Law Faculty of the University of Tromsø, Norway. http://www.jus.uit.no/ \\ RA built the first web site related to international trade law, now known as lexmercatoria.org and described as "an (international | transnational) commercial law and e-commerce infrastructure monitor". http://lexmercatoria.org/ \\ RA is interested in the law, technology, commerce nexus. RA works with the law firm Amissahs. \\ /{[This is a draft document and subject to change.]}/ \\ All errors are very much my own. \\ ralph@amissah.com }~ + +1~ Reinforcing trends: borderless technologies, global economy, transnational legal solutions? + +Revisiting the Autonomous Contract~{ /{The Autonomous Contract: Reflecting the +borderless electronic-commercial environment in contracting}/ was published in +/{Elektronisk handel - rettslige aspekter, Nordisk årsbok i rettsinformatikk +1997}/ (Electronic Commerce - Legal Aspects. The Nordic yearbook for Legal +Informatics 1997) Edited by Randi Punsvik, or at +http://www.jus.uio.no/lm/the.autonomous.contract.07.10.1997.amissah/doc.html }~ + +Globalisation is to be observed as a trend intrinsic to the world economy.~{ As +Maria Cattaui Livanos suggests in /{The global economy - an opportunity to be +seized}/ in /{Business World}/ the Electronic magazine of the International +Chamber of Commerce (Paris, July 1997) at +http://www.iccwbo.org/html/globalec.htm \\ "Globalization is unstoppable. Even +though it may be only in its early stages, it is already intrinsic to the world +economy. We have to live with it, recognize its advantages and learn to manage +it. \\ That imperative applies to governments, who would be unwise to attempt +to stem the tide for reasons of political expediency. It also goes for +companies of all sizes, who must now compete on global markets and learn to +adjust their strategies accordingly, seizing the opportunities that +globalization offers."}~ Rudimentary economics explains this runaway process, +as being driven by competition within the business community to achieve +efficient production, and to reach and extend available markets.~{To remain +successful, being in competition, the business community is compelled to take +advantage of the opportunities provided by globalisation.}~ Technological +advancement particularly in transport and communications has historically +played a fundamental role in the furtherance of international commerce, with +the Net, technology's latest spatio-temporally transforming offering, linchpin +of the "new-economy", extending exponentially the global reach of the business +community. The Net covers much of the essence of international commerce +providing an instantaneous, low cost, convergent, global and borderless: +information centre, marketplace and channel for communications, payments and +the delivery of services and intellectual property. The sale of goods, however, +involves the separate element of their physical delivery. The Net has raised a +plethora of questions and has frequently offered solutions. The increased +transparency of borders arising from the Net's ubiquitous nature results in an +increased demand for the transparency of operation. As economic activities +become increasingly global, to reduce transaction costs, there is a strong +incentive for the "law" that provides for them, to do so in a similar +dimension. The appeal of transnational legal solutions lies in the potential +reduction in complexity, more widely dispersed expertise, and resulting +increased transaction efficiency. The Net reflexively offers possibilities for +the development of transnational legal solutions, having in a similar vein +transformed the possibilities for the promulgation of texts, the sharing of +ideas and collaborative ventures. There are however, likely to be tensions +within the legal community protecting entrenched practices against that which +is new, (both in law and technology) and the business community's goal to +reduce transaction costs. + +Within commercial law an analysis of law and economics may assist in developing +a better understanding of the relationship between commercial law and the +commercial sector it serves.~{ Realists would contend that law is contextual +and best understood by exploring the interrelationships between law and the +other social sciences, such as sociology, psychology, political science, and +economics.}~ "...[T]he importance of the interrelations between law and +economics can be seen in the twin facts that legal change is often a function +of economic ideas and conditions, which necessitate and/or generate demands for +legal change, and that economic change is often governed by legal change."~{ +Part of a section cited in Mercuro and Steven G. Medema, /{Economics and the +Law: from Posner to Post-Modernism}/ (Princeton, 1997) p. 11, with reference to +Karl N. Llewellyn The Effect of Legal Institutions upon Economics, American +Economic Review 15 (December 1925) pp 655-683, Mark M. Litchman Economics, the +Basis of Law, American Law Review 61 (May-June 1927) pp 357-387, and W. S. +Holdsworth A Neglected Aspect of the Relations between Economic and Legal +History, Economic History Review 1 (January 1927-1928) pp 114-123.}~ In doing +so, however, it is important to be aware that there are several competing +schools of law and economics, with different perspectives, levels of +abstraction, and analytical consequences of and for the world that they +model.~{ For a good introduction see Nicholas Mercuro and Steven G. Medema, +/{Economics and the Law: from Posner to Post-Modernism}/ (Princeton, 1997). +These include: Chicago law and economics (New law and economics); New Haven +School of law and economics; Public Choice Theory; Institutional law and +economics; Neoinstitutional law and economics; Critical Legal Studies.}~ + +Where there is rapid interrelated structural change with resulting new +features, rather than concentrate on traditionally established tectonic plates +of a discipline, it is necessary to understand underlying currents and concepts +at their intersections, (rather than expositions of history~{ Case overstated, +but this is an essential point. It is not be helpful to be overly tied to the +past. It is necessary to be able to look ahead and explore new solutions, and +be aware of the implications of "complexity" (as to to the relevance of past +circumstances to the present). }~), is the key to commencing meaningful +discussions and developing solutions for the resulting issues.~{ The majority +of which are beyond the scope of this paper. Examples include: encryption and +privacy for commercial purposes; digital signatures; symbolic ownership; +electronic intellectual property rights.}~ Interrelated developments are more +meaningfully understood through interdisciplinary study, as this instance +suggests, of the law, commerce/economics, and technology nexus. In advocating +this approach, we should also pay heed to the realisation in the sciences, of +the limits of reductionism in the study of complex systems, as such systems +feature emergent properties that are not evident if broken down into their +constituent parts. System complexity exceeds sub-system complexity; +consequently, the relevant unit for understanding the systems function is the +system, not its parts.~{ Complexity theory is a branch of mathematics and +physics that examines non-linear systems in which simple sets of deterministic +rules can lead to highly complicated results, which cannot be predicted +accurately. A study of the subject is provided by Nicholas Rescher +/{Complexity: A Philosophical Overview}/ (New Brunswick, 1998). See also Jack +Cohen and Ian Stewart, /{The Collapse of Chaos: Discovering Simplicity in a +Complex World}/ (1994). }~ Simplistic dogma should be abandoned for a +contextual approach. + +1~ Common Property - advocating a common commercial highway + +Certain infrastructural underpinnings beneficial to the working of the market +economy are not best provided by the business community, but by other actors +including governments. In this paper mention is made for example of the +/{United Nations Convention on the Recognition and Enforcement of Foreign +Arbitral Awards}/ (New York, 10 June 1958), which the business community +regularly relies upon as the back-stop for their international agreements. +Common property can have an enabling value, the Net, basis for the "new" +economy, would not be what it is today without much that has been shared on +this basis, having permitted /{"Metcalf's law"}/~{ Robert Metcalf, founder of +3Com. }~ to take hold. /{Metcalf's law}/ suggests that the value of a shared +technology is exponential to its user base. In all likelihood it applies as +much to transnational contract law, as to technological networks and standards. +The more people who use a network or standard, the more "valuable" it becomes, +and the more users it will attract. Key infrastructure should be identified and +common property solutions where appropriate nurtured, keeping transaction costs +to a minimum. + +The following general perspective is submitted as worthy of consideration (and +support) by the legal, business and academic communities, and governments. +*(a)* Abstract goals valuable to a transnational legal infrastructure include, +certainty and predictability, flexibility, simplicity where possible, and +neutrality, in the sense of being without perceived "unfairness" in the global +context of their application. This covers the content of the "laws" themselves +and the methods used for their interpretation. *(b)* Of law with regard to +technology, "rules should be technology-neutral (i.e., the rules should neither +require nor assume a particular technology) and forward looking (i.e., the +rules should not hinder the use or development of technologies in the +future)."~{ /{US Framework for Global Electronic Commerce}/ (1997) +http://www.whitehouse.gov/WH/New/Commerce/ }~ *(c)* Desirable abstract goals in +developing technological standards and critical technological infrastructure, +include, choice, and that they should be shared and public or "open" as in +"open source", and platform and/or program neutral, that is, interoperable. (On +security, to forestall suggestions to the contrary, popular open source +software tends to be as secure or more so than proprietary software). *(d)* +Encryption is an essential part of the mature "new" economy but remains the +subject of some governments' restriction.~{ The EU is lifting such restriction, +and the US seems likely to follow suit. }~ The availability of (and possibility +to develop common transnational standards for) strong encryption is essential +for commercial security and trust with regard to all manner of Net +communications and electronic commerce transactions, /{vis-à-vis}/ their +confidentiality, integrity, authentication, and non-repudiation. That is, +encryption is the basis for essential commerce related technologies, including +amongst many others, electronic signatures, electronic payment systems and the +development of electronic symbols of ownership (such as electronic bills of +lading). *(e)* As regards the dissemination of primary materials concerning +"uniform standards" in both the legal and technology domains, "the Net" should +be used to make them globally available, free. Technology should be similarly +used where possible to promote the goals outlined under point (a). Naturally, +as a tempered supporter of the market economy,~{ Caveats extending beyond the +purview of this paper. It is necessary to be aware that there are other +overriding interests, global and domestic, that the market economy is ill +suited to providing for, such as the environment, and possibly key public +utilities that require long term planning and high investment. It is also +necessary to continue to be vigilant against that which even if arising as a +natural consequence of the market economy, has the potential to disturb or +destroy its function, such as monopolies.}~ proprietary secondary materials and +technologies do not merit these reservations. Similarly, actors of the market +economy would take advantage of the common property base of the commercial +highway. + +1~ Modelling the private international commercial law infrastructure + +Apart from the study of "laws" or the existing legal infrastructure, there are +a multitude of players involved in their creation whose efforts may be regarded +as being in the nature of systems modelling. Of interest to this paper is the +subset of activity of a few organisations that provide the underpinnings for +the foundation of a successful transnational contract/sales law. These are not +amongst the more controversial legal infrastructure modelling activities, and +represent a small but significant part in simplifying international commerce +and trade.~{ Look for instance at national customs procedures, and consumer +protection.}~ + +Briefly viewing the wider picture, several institutions are involved as +independent actors in systems modelling of the transnational legal +infrastructure. Their roles and mandates and the issues they address are +conceptually different. These include certain United Nations organs and +affiliates such as the United Nations Commission on International Trade Law +(UNCITRAL),~{ http://www.uncitral.org/ }~ the World Intellectual Property +Organisation (WIPO)~{ http://www.wipo.org/ }~ and recently the World Trade +Organisation (WTO),~{ http://www.wto.org/ }~ along with other institutions such +as the International Institute for the Unification of Private Law (UNIDROIT),~{ +http://www.unidroit.org/ }~ the International Chamber of Commerce (ICC),~{ +http://www.iccwbo.org/ }~ and the Hague Conference on Private International +Law.~{ http://www.hcch.net/ }~ They identify areas that would benefit from an +international or transnational regime and use various tools at their disposal, +(including: treaties; model laws; conventions; rules and/or principles; +standard contracts), to develop legislative "solutions" that they hope will be +subscribed to. + +A host of other institutions are involved in providing regional solutions.~{ +such as ASEAN http://www.aseansec.org/ the European Union (EU) +http://europa.eu.int/ MERCOSUR http://embassy.org/uruguay/econ/mercosur/ and +North American Free Trade Agreement (NAFTA) +http://www.nafta-sec-alena.org/english/nafta/ }~ Specialised areas are also +addressed by appropriately specialised institutions.~{ e.g. large international +banks; or in the legal community, the Business Section of the International Bar +Association (IBA) with its membership of lawyers in over 180 countries. +http://www.ibanet.org/ }~ A result of globalisation is increased competition +(also) amongst States, which are active players in the process, identifying and +addressing the needs of their business communities over a wide range of areas +and managing the suitability to the global economy of their domestic legal, +economic, technological and educational~{ For a somewhat frightening peek and +illuminating discussion of the role of education in the global economy as +implemented by a number of successful States see Joel Spring, /{Education and +the Rise of the Global Economy}/ (Mahwah, NJ, 1998). }~ infrastructures. The +role of States remains to identify what domestic structural support they must +provide to be integrated and competitive in the global economy. + +In addition to "traditional" contributors, the technology/commerce/law +confluence provides new challenges and opportunities, allowing, the emergence +of important new players within the commercial field, such as Bolero,~{ +http://www.bolero.org/ also http://www.boleroassociation.org/ }~ which, with +the backing of international banks and ship-owners, offers electronic +replacements for traditional paper transactions, acting as transaction agents +for the electronic substitute on behalf of the trading parties. The acceptance +of the possibility of applying an institutionally offered lex has opened the +door further for other actors including ad hoc groupings of the business +community and/or universities to find ways to be engaged and actively +participate in providing services for themselves and/or others in this domain. + +1~ The foundation for transnational private contract law, arbitration + +The market economy drive perpetuating economic globalisation is also active in +the development and choice of transnational legal solutions. The potential +reward, international sets of contract rules and principles, that can be +counted on to be consistent and as providing a uniform layer of insulation +(with minimal reference back to State law) when applied across the landscape of +a multitude of different municipal legal systems. The business community is +free to utilise them if available, and if not, to develop them, or seek to have +them developed. + +The kernel for the development of a transnational legal infrastructure +governing the rights and obligations of private contracting individuals was put +in place as far back as 1958 by the /{UN Convention on the Recognition and +Enforcement of Foreign Arbitral Awards}/ (/{"NY Convention on ICA"}/),~{ at +http://www.jus.uio.no/lm/un.arbitration.recognition.and.enforcement.convention.new.york.1958/ +}~ now in force in over a hundred States. Together with freedom of contract, +the /{NY Convention on ICA}/ made it possible for commercial parties to develop +and be governed by their own /{lex}/ in their contractual affairs, should they +wish to do so, and guaranteed that provided their agreement was based on +international commercial arbitration (/{"ICA"}/), (and not against relevant +mandatory law) it would be enforced in all contracting States. This has been +given further support by various more recent arbitration rules and the +/{UNCITRAL Model Law on International Commercial Arbitration 1985}/,~{ at +http://www.jus.uio.no/lm/un.arbitration.model.law.1985/ }~ which now explicitly +state that rule based solutions independent of national law can be applied in +/{"ICA"}/.~{ Lando, /{Each Contracting Party Must Act In Accordance with Good +Faith and Fair Dealing}/ in /{Festskrift til Jan Ramberg}/ (Stockholm, 1997) p. +575. See also UNIDROIT Principles, Preamble 4 a. Also Arthur Hartkamp, The Use +of UNIDROIT Principles of International Commercial Contracts by National and +Supranational Courts (1995) in UNIDROIT Principles: A New Lex Mercatoria?, pp. +253-260 on p. 255. But see Goode, /{A New International Lex Mercatoria?}/ in +/{Juridisk Tidskrift}/ (1999-2000 nr 2) p. 256 and 259. }~ + +/{"ICA"}/ is recognised as the most prevalent means of dispute resolution in +international commerce. Unlike litigation /{"ICA"}/ survives on its merits as a +commercial service to provide for the needs of the business community.~{ +/{"ICA"}/ being shaped by market forces and competition adheres more closely to +the rules of the market economy, responding to its needs and catering for them +more adequately. }~ It has consequently been more dynamic than national +judiciaries, in adjusting to the changing requirements of businessmen. Its +institutions are quicker to adapt and innovate, including the ability to cater +for transnational contracts. /{"ICA"}/, in taking its mandate from and giving +effect to the will of the parties, provides them with greater flexibility and +frees them from many of the limitations of municipal law.~{ As examples of +this, it seeks to give effect to the parties' agreement upon: the lex +mercatoria as the law of the contract; the number of, and persons to be +"adjudicators"; the language of proceedings; the procedural rules to be used, +and; as to the finality of the decision. }~ + +In sum, a transnational/non-national regulatory order governing the contractual +rights and obligations of private individuals is made possible by: *(a)* +States' acceptance of freedom of contract (public policy excepted); *(b)* +Sanctity of contract embodied in the principle pacta sunt servanda *(c)* +Written contractual selection of dispute resolution by international commercial +arbitration, whether ad hoc or institutional, usually under internationally +accepted arbitration rules; *(d)* Guaranteed enforcement, arbitration where +necessary borrowing the State apparatus for law enforcement through the /{NY +Convention on ICA}/, which has secured for /{"ICA"}/ a recognition and +enforcement regime unparalleled by municipal courts in well over a hundred +contracting States; *(e)* Transnational effect or non-nationality being +achievable through /{"ICA"}/ accepting the parties' ability to select the basis +upon which the dispute would be resolved outside municipal law, such as through +the selection of general principles of law or lex mercatoria, or calling upon +the arbitrators to act as amiable compositeur or ex aequo et bono. + +This framework provided by /{"ICA"}/ opened the door for the modelling of +effective transnational law default rules and principles for contracts +independent of State participation (in their development, application, or +choice of law foundation). Today we have an increased amount of certainty of +content and better control over the desired degree of transnational effect or +non-nationality with the availability of comprehensive insulating rules and +principles such as the PICC or /{Principles of European Contract Law}/ +(/{"European Principles"}/ or /{"PECL"}/) that may be chosen, either together +with, or to the exclusion of a choice of municipal law as governing the +contract. For electronic commerce a similar path is hypothetically possible. + +1~ "State contracted international law" and/or "institutionally offered lex"? +CISG and PICC as examples + +An institutionally offered lex ("IoL", uniform rules and principles) appear to +have a number of advantages over "State contracted international law" ("ScIL", +model laws, treaties and conventions for enactment). The development and +formulation of both "ScIL" and "IoL" law takes time, the CISG representing a +half century of effort~{ /{UNCITRAL Convention on Contracts for the +International Sale of Goods 1980}/ see at +http://www.jus.uio.no/lm/un.contracts.international.sale.of.goods.convention.1980/ +\\ The CISG may be regarded as the culmination of an effort in the field dating +back to Ernst Rabel, (/{Das Recht des Warenkaufs}/ Bd. I&II (Berlin, +1936-1958). Two volume study on sales law.) followed by the Cornell Project, +(Cornell Project on Formation of Contracts 1968 - Rudolf Schlesinger, Formation +of Contracts. A study of the Common Core of Legal Systems, 2 vols. (New York, +London 1968)) and connected most directly to the UNIDROIT inspired /{Uniform +Law for International Sales}/ (ULIS +http://www.jus.uio.no/lm/unidroit.ulis.convention.1964/ at and ULF at +http://www.jus.uio.no/lm/unidroit.ulf.convention.1964/ ), the main preparatory +works behind the CISG (/{Uniform Law on the Formation of Contracts for the +International Sale of Goods}/ (ULF) and the /{Convention relating to a Uniform +Law on the International Sale of Goods}/ (ULIS) The Hague, 1964.). }~ and PICC +twenty years.~{ /{UNIDROIT Principles of International Commercial Contracts}/ +commonly referred to as the /{UNIDROIT Principles}/ and within this paper as +PICC see at http://www.jus.uio.no/lm/unidroit.contract.principles.1994/ and +http://www.jus.uio.no/lm/unidroit.international.commercial.contracts.principles.1994.commented/ +\\ The first edition of the PICC were finalised in 1994, 23 years after their +first conception, and 14 years after work started on them in earnest. }~ The +CISG by UNCITRAL represents the greatest success for the unification of an area +of substantive commercial contract law to date, being currently applied by 57 +States,~{ As of February 2000. }~ estimated as representing close to seventy +percent of world trade and including every major trading nation of the world +apart from England and Japan. To labour the point, the USA most of the EU +(along with Canada, Australia, Russia) and China, ahead of its entry to the WTO +already share the same law in relation to the international sale of goods. +"ScIL" however has additional hurdles to overcome. *(a)* In order to enter into +force and become applicable, it must go through the lengthy process of +ratification and accession by States. *(b)* Implementation is frequently with +various reservations. *(c)* Even where widely used, there are usually as many +or more States that are exceptions. Success, that is by no means guaranteed, +takes time and for every uniform law that is a success, there are several +failures. + +Institutionally offered lex ("IoL") comprehensive general contract principles +or contract law restatements that create an entire "legal" environment for +contracting, has the advantage of being instantly available, becoming effective +by choice of the contracting parties at the stroke of a pen. "IoL" is also more +easily developed subsequently, in light of experience and need. Amongst the +reasons for their use is the reduction of transaction cost in their provision +of a set of default rules, applicable transnationally, that satisfy risk +management criteria, being (or becoming) known, tried and tested, and of +predictable effect.~{ "[P]arties often want to close contracts quickly, rather +than hold up the transaction to negotiate solutions for every problem that +might arise." Honnold (1992) on p. 13. }~ The most resoundingly successful +"IoL" example to date has been the ICC's /{Uniform Customs and Practices for +Documentary Credits}/, which is subscribed to as the default rules for the +letters of credit offered by the vast majority of banks in the vast majority of +countries of the world. Furthermore uniform principles allow unification on +matters that at the present stage of national and regional pluralism could not +be achieved at a treaty level. There are however, things that only "ScIL" can +"engineer", (for example that which relates to priorities and third party +obligations). + +*{PICC:}* The arrival of PICC in 1994 was particularly timely. Coinciding as it +did with the successful attempt at reducing trade barriers represented by the +/{World Trade Agreement,}/~{ http://www.jus.uio.no/lm/wta.1994/ }~ and the +start of general Internet use,~{ See Amissah, /{On the Net and the Liberation +of Information that wants to be Free}/ in ed. Jens Edvin A. Skoghoy /{Fra +institutt til fakultet, Jubileumsskrift i anledning av at IRV ved Universitetet +i Tromsø feirer 10 år og er blitt til Det juridiske fakultet}/ (Tromsø, 1996) +pp. 59-76 or the same at +http://www.jus.uio.no/lm/on.the.net.and.information.22.02.1997.amissah/ }~ +allowed for the exponential growth of electronic commerce, and further +underscored the transnational tendency of commerce. The arrival of PICC was all +the more opportune bearing in mind the years it takes to prepare such an +instrument. Whilst there have been some objections, the PICC (and PECL) as +contract law restatements cater to the needs of the business community that +seeks a non-national or transnational law as the basis of its contracts, and +provide a focal point for future development in this direction. Where in the +past they would have been forced to rely on the ethereal and nebulous lex +mercatoria, now the business community is provided with the opportunity to make +use of such a "law" that is readily accessible, and has a clear and reasonably +well defined content, that will become familiar and can be further developed as +required. As such the PICC allow for more universal and uniform solutions. +Their future success will depend on such factors as: *(a)* Suitability of their +contract terms to the needs of the business community. *(b)* Their becoming +widely known and understood. *(c)* Their predictability evidenced by a +reasonable degree of consistency in the results of their application. *(d)* +Recognition of their potential to reduce transaction costs. *(e)* Recognition +of their being neutral as between different nations' interests (East, West; +North, South). In the international sale of goods the PICC can be used in +conjunction with more specific rules and regulations, including (on parties +election~{ Also consider present and future possibilities for such use of PICC +under CISG articles 8 and 9. }~) in sales the CISG to fill gaps in its +provisions.~{ Drobnig, id. p. 228, comment that the CISG precludes recourse to +general principles of contract law in Article 7. This does not refer to the +situation where parties determine that the PICC should do so, see CISG Article +6. Or that in future the PICC will not be of importance under CISG Articles 8 +and 9. }~ Provisions of the CISG would be given precedence over the PICC under +the accepted principle of /{specialia generalibus derogant}/,~{ "Special +principles have precedence over general ones." See Huet, Synthesis (1995) p. +277. }~ the mandatory content of the PICC excepted. The CISG has many +situations that are not provided for at all, or which are provided for in less +detail than the PICC. + +Work on PICC and PECL under the chairmanship of Professors Bonell and Ole Lando +respectively, was wisely cross-pollinated (conceptually and through +cross-membership of preparatory committees), as common foundations strengthen +both sets of principles. A couple of points should be noted. Firstly, despite +the maintained desirability of a transnational solution, this does not exclude +the desirability of regional solutions, especially if there is choice, and the +regional solutions are more comprehensive and easier to keep of uniform +application. Secondly, the European Union has powers and influence (within the +EU) unparalleled by UNIDROIT that can be utilised in future with regard to the +PECL if the desirability of a common European contract solution is recognised +and agreed upon by EU member States. As a further observation, there is, +hypothetically at least, nothing to prevent there in future being developed an +alternative extensive (competing) transnational contract /{lex}/ solution, +though the weighty effort already in place as represented by PICC and the high +investment in time and independent skilled legal minds, necessary to achieve +this in a widely acceptable manner, makes such a development not very likely. +It may however be the case that for electronic commerce, some other +particularly suitable rules and principles will in time be developed in a +similar vein, along the lines of an "IoL". + +1~ Contract /{Lex}/ design. Questions of commonweal + +The virtues of freedom of contract are acknowledged in this paper in that they +allow the international business community to structure their business +relationships to suit their requirements, and as such reflect the needs and +working of the market economy. However, it is instructive also to explore the +limits of the principles: freedom of contract, pacta sunt servanda and caveat +subscriptor. These principles are based on free market arguments that parties +best understand their interests, and that the contract they arrive at will be +an optimum compromise between their competing interests. It not being for an +outsider to regulate or evaluate what a party of their own free will and +volition has gained from electing to contract on those terms. This approach to +contract is adversarial, based on the conflicting wills of the parties, +achieving a meeting of minds. It imposes no duty of good faith and fair dealing +or of loyalty (including the disclosure of material facts) upon the contracting +parties to one another, who are to protect their own interests. However, in +international commerce, this demand can be more costly, and may have a negative +and restrictive effect. Also, although claimed to be neutral in making no +judgement as to the contents of a contract, this claim can be misleading. + +2~ The neutrality of contract law and information cost + +The information problem is a general one that needs to be recognised in its +various forms where it arises and addressed where possible. + +Adherents to the caveat subscriptor model, point to the fact that parties have +conflicting interests, and should look out for their own interests. However +information presents particular problems which are exacerbated in international +commerce.~{ The more straightforward cases of various types of +misrepresentation apart. }~ As Michael Trebilcock put it: "Even the most +committed proponents of free markets and freedom of contract recognise that +certain information preconditions must be met for a given exchange to possess +Pareto superior qualities."~{ Trebilcock, (1993) p. 102, followed by a +quotation of Milton Friedman, from /{Capitalism and Freedom}/ (1962) p. 13. }~ +Compared with domestic transactions, the contracting parties are less likely to +possess information about each other or of what material facts there may be +within the other party's knowledge, and will find it more difficult and costly +to acquire. With resource inequalities, some parties will be in a much better +position to determine and access what they need to know, the more so as the +more information one already has, the less it costs to identify and to obtain +any additional information that is required.~{ Trebilcock, (1993) p. 102, note +quoted passage of Kim Lane Scheppele, /{Legal Secrets: Equality and Efficiency +in the Common Law}/ (1988) p. 25. }~ The converse lot of the financially weaker +party, makes their problem of high information costs (both actual and +relative), near insurmountable. Ignorance may even become a rational choice, as +the marginal cost of information remains higher than its marginal benefit. +"This, in fact is the economic rationale for the failure to fully specify all +contingencies in a contract."~{ See for example Nicholas Mercuro and Steven G. +Medema, p. 58 }~ The argument is tied to transaction cost and further +elucidates a general role played by underlying default rules and principles. It +also extends further to the value of immutable principles that may help +mitigate the problem in some circumstances. More general arguments are +presented below. + +2~ Justifying mandatory loyalty principles + +Given the ability to create alternative solutions and even an independent +/{lex}/ a question that arises is as to what limits if any should be imposed +upon freedom of contract? What protective principles are required? Should +protective principles be default rules that can be excluded? Should they be +mandatory? Should mandatory law only exist at the level of municipal law? + +A kernel of mandatory protective principles with regard to loyalty may be +justified, as beneficial, and even necessary for "IoL" to be acceptable in +international commerce, in that they (on the balance) reflect the collective +needs of the international business community. The present author is of the +opinion that the duties of good faith and fair dealing and loyalty (or an +acceptable equivalent) should be a necessary part of any attempt at the +self-legislation or institutional legislation of any contract regime that is +based on "rules and principles" (rather than a national legal order). If absent +a requirement for them should be imposed by mandatory international law. Such +protective provisions are to be found within the PICC and PECL.~{ Examples +include: the deliberately excluded validity (Article 4); the provision on +interest (Article 78); impediment (Article 79), and; what many believe to be +the inadequate coverage of battle of forms (Article 19). }~ As regards PICC +*(a)* The loyalty (and other protective) principles help bring about confidence +and foster relations between parties. They provide an assurance in the +international arena where parties are less likely to know each other and may +have more difficulty in finding out about each other. *(b)* They better reflect +the focus of the international business community on a business relationship +from which both sides seek to gain. *(c)* They result in wider acceptability of +the principles within both governments and the business community in the +pluralistic international community. These protective principles may be +regarded as enabling the PICC to better represent the needs of the commonweal. +*(d)* Good faith and fair dealing~{ The commented PECL explain "'Good faith' +means honesty and fairness in mind, which are subjective concepts... 'fair +dealing' means observance of fairness in fact which is an objective test". }~ +are fundamental underlying principles of international commercial relations. +*(e)* Reliance only on the varied mandatory law protections of various States +does not engender uniformity, which is also desirable with regard to that which +can be counted upon as immutable. (Not that it is avoidable, given that +mandatory State law remains overriding.) More generally, freedom of contract +benefits from these protective principles that need immutable protection from +contractual freedom to effectively serve their function. In seeking a +transnational or non-national regime to govern contractual relations, one might +suggest this to be the minimum price of freedom of contract that should be +insisted upon by mandatory international law, as the limitation which hinders +the misuse by one party of unlimited contractual freedom. They appear to be an +essential basis for acceptability of the autonomous contract (non-national +contract, based on agreed rules and principles/ "IoL"). As immutable principles +they (hopefully and this is to be encouraged) become the default standard for +the conduct of international business and as such may be looked upon as "common +property." Unless immutable they suffer a fate somewhat analogous to that of +"the tragedy of the commons."~{ Special problem regarding common/shared +resources discussed by Garrett Hardin in Science (1968) 162 pp. 1243-1248. For +short discussion and summary see Trebilcock, (1993) p. 13-15. }~ It should be +recognised that argument over the loyalty principles should be of degree, as +the concept must not be compromised, and needs to be protected (even if they +come at the price of a degree of uncertainty), especially against particularly +strong parties who are most likely to argue against their necessity. + +1~ Problems beyond uniform texts + +2~ In support of four objectives + +In the formulation of many international legal texts a pragmatic approach was +taken. Formulating legislators from different States developed solutions based +on suitable responses to factual example circumstances. This was done, +successfully, with a view to avoiding arguments over alternative legal +semantics and methodologies. However, having arrived at a common text, what +then? Several issues are raised by asking the question, given that differences +of interpretation can arise and become entrenched, by what means is it possible +to foster a sustainable drive towards the uniform application of shared texts? +Four principles appear to be desirable and should insofar as it is possible be +pursued together: *(i)* the promotion of certainty and predictability; *(ii)* +the promotion of uniformity of application; *(iii)* the protection of +democratic ideals and ensuring of jurisprudential deliberation, and; *(iv)* the +retention of efficiency. + +2~ Improving the predictability, certainty and uniform application of international and transnational law + +The key to the (efficient) achievement of greater certainty and predictability +in an international and/or transnational commercial law regime is through the +uniform application of shared texts that make up this regime. + +Obviously a distinction is to be made between transnational predictability in +application, that is "uniform application", and predictability at a domestic +level. Where the "uniform law" is applied by a municipal court of State "A" +that looks first to its domestic writings, there may be a clear - predictable +manner of application, even if not in the spirit of the "Convention". Another +State "B" may apply the uniform law in a different way that is equally +predictable, being perfectly consistent internally. This however defeats much +of the purpose of the uniform law. + +A first step is for municipal courts to accept the /{UN Convention on the Law +of Treaties 1969}/ (in force 1980) as a codification of existing public +international law with regard to the interpretation of treaties.~{ This is the +position in English law see Lord Diplock in Fothergill v Monarch Airlines +[1981], A.C. 251, 282 or see +http://www.jus.uio.no/lm/england.fothergill.v.monarch.airlines.hl.1980/2_diplock.html +also Mann (London, 1983) at p. 379. The relevant articles on interpretation are +Article 31 and 32. }~ A potentially fundamental step towards the achievement of +uniform application is through the conscientious following of the admonitions +of the interpretation clauses of modern conventions, rules and principles~{ +Examples: The CISG, Article 7; The PICC, Article 1.6; PECL Article 1.106; /{UN +Convention on the Carriage of Goods by Sea (The Hamburg Rules) 1978}/, Article +3; /{UN Convention on the Limitation Period in the International Sale of Goods +1974}/ and /{1978}/, Article 7; /{UN Model Law on Electronic Commerce 1996}/, +Article 3; /{UNIDROIT Convention on International Factoring 1988}/, Article 4; +/{UNIDROIT Convention on International Financial Leasing 1988}/, Article 6; +also /{EC Convention on the Law Applicable to Contractual Obligations 1980}/, +Article 18. }~ to take into account their international character and the need +to promote uniformity in their application,~{ For an online collection of +articles see the Pace CISG Database +http://www.cisg.law.pace.edu/cisg/text/e-text-07.html and amongst the many +other articles do not miss Michael Van Alstine /{Dynamic Treaty +Interpretation}/ 146 /{University of Pennsylvania Law Review}/ (1998) 687-793. +}~ together with all this implies.~{ Such as the CISG provision on +interpretation - Article 7. }~ However, the problems of uniform application, +being embedded in differences of legal methodology, go beyond the agreement of +a common text, and superficial glances at the works of other legal +municipalities. These include questions related to sources of authority and +technique applied in developing valid legal argument. Problems with sources +include differences in authority and weight given to: *(a)* legislative +history; *(b)* rulings domestic and international; *(c)* official and other +commentaries; *(d)* scholarly writings. There should be an ongoing discussion +of legal methodology to determine the methods best suited to addressing the +problem of achieving greater certainty, predictability and uniformity in the +application of shared international legal texts. With regard to information +sharing, again the technology associated with the Net offers potential +solutions. + +2~ The Net and information sharing through transnational databases + +The Net has been a godsend permitting the collection and dissemination of +information on international law. With the best intentions to live up to +admonitions to "to take into account their international character and the need +to promote uniformity in their application" of "ScIL" and "IoL", a difficulty +has been in knowing what has been written and decided elsewhere. In discussing +solutions, Professor Honnold in /{"Uniform Words and Uniform Application" }/~{ +Based on the CISG, and inputs from several professors from different legal +jurisdictions, on the problems of achieving the uniform application of the text +across different legal municipalities. J. Honnold, /{Uniform words and uniform +applications. Uniform Words and Uniform Application: The 1980 Sales Convention +and International Juridical Practice}/. /{Einheitliches Kaufrecht und +nationales Obligationenrecht. Referate Diskussionen der Fachtagung}/. am +16/17-2-1987. Hrsg. von P. Schlechtriem. Baden-Baden, Nomos, 1987. p. 115-147, +at p. 127-128. }~ suggests the following: "General Access to Case-Law and +Bibliographic Material: The development of a homogenous body of law under the +Convention depends on channels for the collection and sharing of judicial +decisions and bibliographic material so that experience in each country can be +evaluated and followed or rejected in other jurisdictions." Honnold then goes +on to discuss "the need for an international clearing-house to collect and +disseminate experience on the Convention" the need for which, he writes there +is general agreement. He also discusses information-gathering methods through +the use of national reporters. He poses the question "Will these channels be +adequate? ..." + +The Net, offering inexpensive ways to build databases and to provide global +access to information, provides an opportunity to address these problems that +was not previously available. The Net extends the reach of the admonitions of +the interpretation clauses. Providing the medium whereby if a decision or +scholarly writing exists on a particular article or provision of a Convention, +anywhere in the world, it will be readily available. Whether or not a national +court or arbitration tribunal chooses to follow their example, they should be +aware of it. Whatever a national court decides will also become internationally +known, and will add to the body of experience on the Convention.~{ Nor is it +particularly difficult to set into motion the placement of such information on +the Net. With each interested participant publishing for their own interest, +the Net could provide the key resources to be utilised in the harmonisation and +reaching of common understandings of solutions and uniform application of legal +texts. Works from all countries would be available. }~ + +Such a library would be of interest to the institution promulgating the text, +governments, practitioners and researchers alike. It could place at your +fingertips: *(a)* Convention texts. *(b)* Implementation details of contracting +States. *(c)* The legislative history. *(d)* Decisions generated by the +convention around the world (court and arbitral where possible). *(e)* The +official and other commentaries. *(f)* Scholarly writings on the Convention. +*(g)* Bibliographies of scholarly writings. *(h)* Monographs and textbooks. +*(i)* Student study material collections. *(j)* Information on promotional +activities, lectures - moots etc. *(k)* Discussion groups/ mailing groups and +other more interactive features. + +With respect to the CISG such databases are already being maintained.~{ Primary +amongst them Pace University, Institute of International Commercial Law, CISG +Database http://www.cisg.law.pace.edu/ which provides secondary support for the +CISG, including providing a free on-line database of the legislative history, +academic writings, and case-law on the CISG and additional material with regard +to PICC and PECL insofar as they may supplement the CISG. Furthermore, the Pace +CISG Project, networks with the several other existing Net based "autonomous" +CISG projects. UNCITRAL under Secretary Gerold Herrmann, has its own database +through which it distributes its case law materials collected from national +reporters (CLOUT). }~ + +The database by ensuring the availability of international materials, used in +conjunction with legal practice, helps to support the fore-named four +principles. That of efficiency is enhanced especially if there is a single +source that can be searched for the information required. + +The major obstacle that remains to being confident of this as the great and +free panacea that it should be is the cost of translation of texts. + +2~ Judicial minimalism promotes democratic jurisprudential deliberation + +How to protect liberal democratic ideals and ensure international +jurisprudential deliberation? Looking at judicial method, where court decisions +are looked to for guidance, liberal democratic ideals and international +jurisprudential deliberation are fostered by a judicial minimalist approach. + +For those of us with a common law background, and others who pay special +attention to cases as you are invited to by interpretation clauses, there is +scope for discussion as to the most appropriate approach to be taken with +regard to judicial decisions. US judge Cass Sunstein suggestion of judicial +minimalism~{ Cass R. Sunstein, /{One Case at a Time - Judicial Minimalism on +the Supreme Court}/ (1999) }~ which despite its being developed in a different +context~{ His analysis is developed based largely on "hard" constitutional +cases of the U.S. }~ is attractive in that it is suited to a liberal democracy +in ensuring democratic jurisprudential deliberation. It maintains discussion, +debate, and allows for adjustment as appropriate and the gradual development of +a common understanding of issues. Much as one may admire farsighted and +far-reaching decisions and expositions, there is less chance with the +minimalist approach of the (dogmatic) imposition of particular values. Whilst +information sharing offers the possibility of the percolation of good ideas.~{ +D. Stauffer, /{Introduction to Percolation Theory}/ (London, 1985). Percolation +represents the sudden dramatic expansion of a common idea or ideas thought he +reaching of a critical level/mass in the rapid recognition of their power and +the making of further interconnections. An epidemic like infection of ideas. +Not quite the way we are used to the progression of ideas within a conservative +tradition. }~ Much as we admire the integrity of Dworkin's Hercules,~{ Ronald +Dworkin, /{Laws Empire}/ (Harvard, 1986); /{Hard Cases in Harvard Law Review}/ +(1988). }~ that he can consistently deliver single solutions suitable across +such disparate socio-economic cultures is questionable. In examining the +situation his own "integrity" would likely give him pause and prevent him from +dictating that he can.~{ Hercules was created for U.S. Federal Cases and the +community represented by the U.S. }~ This position is maintained as a general +principle across international commercial law, despite private (as opposed to +public) international commercial law not being an area of particularly "hard" +cases of principle, and; despite private international commercial law being an +area in which over a long history it has been demonstrated that lawyers are +able to talk a common language to make themselves and their concepts (which are +not dissimilar) understood by each other.~{ In 1966, a time when there were +greater differences in the legal systems of States comprising the world economy +Clive Schmitthoff was able to comment that: \\ "22. The similarity of the law +of international trade transcends the division of the world between countries +of free enterprise and countries of centrally planned economy, and between the +legal families of the civil law of Roman inspiration and the common law of +English tradition. As a Polish scholar observed, "the law of external trade of +the countries of planned economy does not differ in its fundamental principles +from the law of external trade of other countries, such as e.g., Austria or +Switzerland. Consequently, international trade law specialists of all countries +have found without difficulty that they speak a 'common language' \\ 23. The +reason for this universal similarity of the law of international trade is that +this branch of law is based on three fundamental propositions: first, that the +parties are free, subject to limitations imposed by the national laws, to +contract on whatever terms they are able to agree (principle of the autonomy of +the parties' will); secondly, that once the parties have entered into a +contract, that contract must be faithfully fulfilled (pacta sunt servanda) and +only in very exceptional circumstances does the law excuse a party from +performing his obligations, viz., if force majeure or frustration can be +established; and, thirdly that arbitration is widely used in international +trade for the settlement of disputes, and the awards of arbitration tribunals +command far-reaching international recognition and are often capable of +enforcement abroad." \\ /{Report of the Secretary-General of the United +Nations, Progressive Development of the Law of International Trade}/ (1966). +Report prepared for the UN by C. Schmitthoff. }~ + +2~ Non-binding interpretative councils and their co-ordinating guides can provide a focal point for the convergence of ideas - certainty, predictability, and efficiency + +A respected central guiding body can provide a guiding influence with respect +to: *(a)* the uniform application of texts; *(b)* information management +control. Given the growing mass of writing on common legal texts - academic and +by way of decisions, we are faced with an information management problem.~{ +Future if not current. }~ + +Supra-national interpretative councils have been called for previously~{ +/{UNCITRAL Secretariat}/ (1992) p. 253. Proposed by David (France) at the +second UNCITRAL Congress and on a later occasion by Farnsworth (USA). To date +the political will backed by the financing for such an organ has not been +forthcoming. In 1992 the UNCITRAL Secretariat concluded that "probably the time +has not yet come". Suggested also by Louis Sono in /{Uniform laws require +uniform interpretation: proposals for an international tribunal to interpret +uniform legal texts}/ (1992) 25th UNCITRAL Congress, pp. 50-54. Drobnig, +/{Observations in Uniform Law in Practice}/ at p. 306. }~ and have for various +reasons been regarded impracticable to implement including problems associated +with getting States to formally agree upon such a body with binding authority. + +However it is not necessary to go this route. In relation to "IoL" in such +forms as the PICC and PECL it is possible for the promulgators themselves,~{ +UNIDROIT and the EU }~ to update and clarify the accompanying commentary of the +rules and principles, and to extend their work, through having councils with +the necessary delegated powers. In relation to the CISG it is possible to do +something similar of a non-binding nature, through the production of an updated +commentary by an interpretive council (that could try to play the role of +Hercules).~{ For references on interpretation of the CISG by a supranational +committee of experts or council of "wise men" see Bonell, /{Proposal for the +Establishment of a Permanent Editorial Board for the Vienna Sales Convention}/ +in /{International Uniform Law in Practice/ Le droit uniforme international +dans la practique [Acts and Proceedings of the 3rd Congress on Private Law held +by the International Institute for the Unification of Private Law}/ (Rome, +1987)], (New York, 1988) pp. 241-244 }~ With respect, despite some expressed +reservations, it is not true that it would have no more authority than a single +author writing on the subject. A suitable non-binding interpretative council +would provide a focal point for the convergence of ideas. Given the principle +of ensuring democratic jurisprudential deliberation, that such a council would +be advisory only (except perhaps on the contracting parties election) would be +one of its more attractive features, as it would ensure continued debate and +development. + +2~ Capacity Building + +_1 "... one should create awareness about the fact that an international +contract or transaction is not naturally rooted in one particular domestic law, +and that its international specifics are best catered for in a uniform law."~{ +UNCITRAL Secretariat (1992) p. 255. }~ + +_{/{Capacity building}/}_ - raising awareness, providing education, creating a +new generation of lawyers versed in a relatively new paradigm. Capacity +building in international and transnational law, is something relevant +institutions including arbitration institutions; the business community, and; +far sighted States, should be interested in promoting. Finding means to +transcend national boundaries is also to continue in the tradition of seeking +the means to break down barriers to legal communication and understanding. +However, while the business community seeks and requires greater uniformity in +their business relations, there has paradoxically, at a national level, been a +trend towards a nationalisation of contract law, and a regionalisation of +business practice.~{ Erich Schanze, /{New Directions in Business Research}/ in +Børge Dahl & Ruth Nielsen (ed.), /{New Directions in Contract Research}/ +(Copenhagen, 1996) p. 62. }~ + +As an example, Pace University, Institute of International Commercial Law, +plays a prominent role with regard to capacity building in relation to the CISG +and PICC. Apart from the previously mentioned /{CISG Database}/, Pace +University organise a large annual moot on the CISG~{ See +http://www.cisg.law.pace.edu/vis.html }~ this year involving students of 79 +universities from 28 countries, and respected arbitrators from the word over. +Within the moot the finding of solutions based on PICC where the CISG is +silent, is encouraged. Pace University also organise an essay competition~{ See +http://www.cisg.law.pace.edu/cisg/text/essay.html }~ on the CISG and/or the +PICC, which next year is to be expanded to include the PECL as a further +option. + +1~ Marketing of transnational solutions + +Certain aspects of the Net/web may already be passé, but did you recognise it +for what it was, or might become, when it arrived? + +As uniform law and transnational solutions are in competition with municipal +approaches, to be successful a certain amount of marketing is necessary and may +be effective. The approach should involve ensuring the concept of what they +seek to achieve is firmly implanted in the business, legal and academic +communities, and through engaging the business community and arbitration +institutions, in capacity building and developing a new generation of lawyers. +Feedback from the business community, and arbitrators will also prove +invaluable. Whilst it is likely that the business community will immediately be +able to recognise their potential advantages, it is less certain that they will +find the support of the legal community. The normal reasons would be similar to +those usually cited as being the primary constraints on its development +"conservatism, routine, prejudice and inertia" René David. These are problems +associated with gaining the initial foothold of acceptability, also associated +with the lower part of an exponential growth curve. In addition the legal +community may face tensions arising for various reasons including the +possibility of an increase in world-wide competition. + +There are old well developed legal traditions with developed infrastructures +and roots well established in several countries, that are dependable and known. +The question arises why experiment with alternative non-extensively tested +regimes? The required sophistication is developed in the centres providing +legal services, and it may be argued that there is not the pressing need for +unification or for transnational solutions, as the traditional way of +contracting provides satisfactorily for the requirements of global commerce. +The services required will continue to be easily and readily available from +existing centres of skill. English law, to take an example is for various +reasons (including perhaps language, familiarity of use, reputation and +widespread Commonwealth~{ http://www.thecommonwealth.org/ }~ relations) the +premier choice for the law governing international commercial transactions, and +is likely to be for the foreseeable future. Utilising the Commonwealth as an +example, what the "transnational" law (e.g. CISG) experience illustrates +however, is that for States there may be greater advantage to be gained from +participation in a horizontally shared area of commercial law, than from +retaining a traditional vertically integrated commercial law system, based +largely for example on the English legal system. + +Borrowing a term from the information technology sector, it is essential to +guard against FUD (fear, uncertainty and doubt) with regard to the viability of +new and/or competing transnational solutions, that may be spread by their +detractors, and promptly, in the manner required by the free market, address +any real problems that are discerned. + +1~ Tools in future development + +An attempt should be made by the legal profession to be more contemporary and +to keep up to date with developments in technology and the sciences, and to +adopt effective tools where suitable to achieve their goals. Technology one way +or another is likely to encroach further upon law and the way we design it. + +Science works across cultures and is aspired to by most nations as being +responsible for the phenomenal success of technology (both are similarly +associated with globalisation). Science is extending its scope to (more +confidently) tackle complex systems. It would not hurt to be more familiar with +relevant scientific concepts and terminology. Certainly lawyers across the +globe, myself included, would also benefit much in their conceptual reasoning +from an early dose of the philosophy of science,~{ An excellent approachable +introduction is provided by A.F. Chalmers /{What is this thing called +Science?}/ (1978, Third Edition 1999). }~ what better than Karl Popper on +scientific discovery and the role of "falsification" and value of predictive +probity.~{ Karl R. Popper /{The Logic of Scientific Discovery}/ (1959). }~ And +certainly Thomas Kuhn on scientific advancement and "paradigm shifts"~{ Thomas +S. Kuhn /{The Structure of Scientific Revolutions}/ (1962, 3rd Edition 1976). +}~ has its place. Having mentioned Karl Popper, it would not be unwise to go +further (outside the realms of philosophy of science) to study his defence of +democracy in both volumes of /{Open Society and Its Enemies}/.~{ Karl R. Popper +/{The Open Society and Its Enemies: Volume 1, Plato}/ (1945) and /{The Open +Society and Its Enemies: Volume 2, Hegel & Marx}/. (1945) }~ + +Less ambitiously there are several tools not traditionally in the lawyers set, +that may assist in transnational infrastructure modelling. These include +further exploration and development of the potential of tools, including to +suggest a few by way of example: flow charts, fuzzy thinking, "intelligent" +electronic agents and Net collaborations. + +In the early 1990's I was introduced to a quantity surveyor and engineer who +had reduced the /{FIDIC Red Book}/~{ FIDIC is the International Federation of +Consulting Engineers http://www.fidic.com/ }~ to over a hundred pages of +intricate flow charts (decision trees), printed horizontally on roughly A4 +sized sheets. He was employed by a Norwegian construction firm, who insisted +that based on past experience, they knew that he could, using his charts, +consistently arrive at answers to their questions in a day, that law firms took +weeks to produce. Flow charts can be used to show interrelationships and +dependencies, in order to navigate the implications of a set of rules more +quickly. They may also be used more pro-actively (and /{ex ante}/ rather than +/{ex post}/) in formulating texts, to avoid unnecessary complexity and to +arrive at more practical, efficient and elegant solutions. + +Explore such concepts as "fuzzy thinking"~{ Concept originally developed by +Lotfi Zadeh /{Fuzzy Sets}/ Information Control 8 (1965) pp 338-353. For +introductions see Daniel McNeill and Paul Freiberger /{Fuzzy Logic: The +Revolutionary Computer Technology that is Changing our World}/ (1993); Bart +Kosko Fuzzy Thinking (1993); Earl Cox The Fuzzy Systems Handbook (New York, 2nd +ed. 1999). Perhaps to the uninitiated an unfortunate choice of name, as fuzzy +logic and fuzzy set theory is more precise than classical logic and set theory, +which comprise a subset of that which is fuzzy (representing those instances +where membership is 0% or 100%). The statement is not entirely without +controversy, in suggesting the possibility that classical thinking may be +subsumed within the realms of an unfamiliar conceptual paradigm, that is to +take hold of the future thinking. In the engineering field much pioneer work on +fuzzy rule based systems was done at Queen Mary College by Ebrahim Mamdani in +the early and mid-1970s. Time will tell. }~ including fuzzy logic, fuzzy set +theory, and fuzzy systems modelling, of which classical logic and set theory +are subsets. Both by way of analogy and as a tool fuzzy concepts are better at +coping with complexity and map more closely to judicial thinking and argument +in the application of principles and rules. Fuzzy theory provides a method for +analysing and modelling principle and rule based systems, even where +conflicting principles may apply permitting /{inter alia}/ working with +competing principles and the contextual assignment of precision to terms such +as "reasonableness". Fuzzy concepts should be explored in expert systems, and +in future law. Problems of scaling associated with multiple decision trees do +not prevent useful applications, and structured solutions. The analysis assists +in discerning what lawyers are involved with. + +"Intelligent" electronic agents can be expected both to gather information on +behalf of the business community and lawyers. In future electronic agents are +likely to be employed to identify and bring to the attention of their +principals "invitations to treat" or offers worthy of further investigation. In +some cases they will be developed and relied upon as electronic legal agents, +operating under a programmed mandate and vested with the authority to enter +certain contracts on behalf of their principals. Such mandate would include +choice of law upon which to contract, and the scenario could be assisted by +transnational contract solutions (and catered for in the design of "future +law"). + +Another area of technology helping solve legal problems relates to various +types of global register and transaction centres. Amongst them property +registers being an obvious example, including patents and moveable property. +Bolero providing an example of how electronic documents can be centrally +brokered on behalf of trading parties. + +Primary law should be available on the Net free, and this applies also to "IoL" +and the static material required for their interpretation. This should be the +policy adopted by all institutions involved in contributing to the +transnational legal infrastructure. Where possible larger databases also should +be developed and shared. The Net has reduced the cost of dissemination of +material, to a level infinitesimally lower than before. Universities now can +and should play a more active role. Suitable funding arrangements should be +explored that do not result in proprietary systems or the forwarding of +specific lobby interests. In hard-copy to promote uniform standards, +institutions should also strive to have their materials available at a +reasonable price. Many appear to be unacceptably expensive given the need for +their promotion and capacity building, amongst students, and across diverse +States. + +Follow the open standards and community standards debate in relation to the +development of technology standards and technology infrastructure tools - +including operating systems,~{ See for example /{Open Sources : Voices from the +Open Source Revolution - The Open Source Story}/ +http://www.oreilly.com/catalog/opensources/book/toc.html }~ to discover what if +anything it might suggest for the future development of law standards. + +1~ As an aside, a word of caution + +I end with an arguably gratuitous observation, by way of a reminder and general +warning. Gratuitous in the context of this paper because the areas focused +upon~{ Sale of goods (CISG), contract rules and principles (PICC), related +Arbitration, and the promotion of certain egalitarian ideals. }~ were somewhat +deliberately selected to fall outside the more contentious and "politically" +problematic areas related to globalisation, economics, technology, law and +politics.~{ It is not as evident in the area of private international +commercial contract law the chosen focus for this paper, but appears repeatedly +in relation to other areas and issues arising out of the economics, technology, +law nexus. }~ Gratuitous also because there will be no attempt to concretise or +exemplify the possibility suggested. + +Fortunately, we are not (necessarily) talking about a zero sum game, however, +it is necessary to be able to distinguish and recognise that which may harm. +International commerce/trade is competitive, and by its nature not benign, even +if it results in an overall improvement in the economic lot of the peoples of +our planet. "Neutral tests" such as Kaldor-Hicks efficiency, do not require +that your interests are benefited one iota, just that whilst those of others +are improved, yours are not made worse. If the measure adopted is overall +benefit, it is even more possible that an overall gain may result where your +interests are adversely affected. The more so if you have little, and those +that gain, gain much. Furthermore such "tests" are based on assumptions, which +at best are approximations of reality (e.g. that of zero transaction costs, +where in fact not only are they not, but they are frequently proportionately +higher for the economically weak). At worst they may be manipulated /{ex ante}/ +with knowledge of their implications (e.g. engineering to ensure actual or +relative~{ Low fixed costs have a "regressive" effect }~ asymmetrical +transaction cost). It is important to be careful in a wide range of +circumstances related to various aspects of the modelling of the infrastructure +for international commerce that have an impact on the allocation of rights and +obligations, and especially the allocation of resources, including various +types of intellectual property rights. Ask what is the objective and +justification for the protection? How well is the objective met? Are there +other consequential effects? Are there other objectives that are worthy of +protection? Could the stated objective(s) be achieved in a better way? + +Within a system are those who benefit from the way it has been, that may oppose +change as resulting in loss to them or uncertainty of their continued +privilege. For a stable system to initially arise that favours such a Select +Set, does not require the conscious manipulation of conditions by the Select +Set. Rather it requires that from the system (set) in place the Select Set +emerges as beneficiary. Subsequently the Select Set having become established +as favoured and empowered by their status as beneficiary, will seek to do what +it can, to influence circumstances to ensure their continued beneficial status. +That is, to keep the system operating to their advantage (or tune it to work +even better towards this end), usually with little regard to the conditions +resulting to other members of the system. Often this will be a question of +degree, and the original purpose, or an alternative "neutral" argument, is +likely to be used to justify the arrangement. The objective from the +perspective of the Select Set is fixed; the means at their disposal may vary. +Complexity is not required for such situations to arise, but having done so +subsequent plays by the Select Set tend towards complexity. Furthermore, moves +in the interest of the Select Set are more easily obscured/disguised in a +complex system. Limited access to information and knowledge are devastating +handicaps without which change cannot be contemplated let alone negotiated. +Frequently, having information and knowledge are not enough. The protection of +self-interest is an endemic part of our system, with the system repeatedly +being co-opted to the purposes of those that are able to manipulate it. +Membership over time is not static, for example, yesterday's "copycat nations" +are today's innovators, and keen to protect their intellectual property. Which +also illustrates the point that what it may take to set success in motion, may +not be the same as that which is preferred to sustain it. Whether these +observations appear to be self-evident and/or abstract and out of place with +regard to this paper, they have far reaching implications repeatedly observable +within the law, technology, and commerce (politics) nexus. Even if not arising +much in the context of the selected material for this paper, their mention is +justified by way of warning. Suitable examples would easily illustrate how +politics arises inescapably as an emergent property from the nexus of commerce, +technology, and law.~{ In such circumstances either economics or law on their +own would be sufficient to result in politics arising as an emergent property. +}~ + +%% SiSU markup sample Notes: +% SiSU http://www.jus.uio.no/sisu +% SiSU markup for 0.16 and later: +% 0.20.4 header 0~links +% 0.22 may drop image dimensions (rmagick) +% 0.23 utf-8 ß +% 0.38 or later, may use alternative notation for headers, e.g. @title: (instead of 0~title) +% 0.38 document structure alternative markup, experimental (rad) A,B,C,1,2,3 maps to 1,2,3,4,5,6 +% 0.42 * type endnotes, used e.g. in relation to author +% 0.51 skins changed, markup unchanged +% 0.52 declared document type identifier at start of text +% Output: http://www.jus.uio.no/sisu/autonomy_markup0/sisu_manifest.html +% SiSU 0.38 experimental (alternative structure) markup used for this document +% (compare 0.36 standard markup in sisu-examples autonomy_markup4.sst) |