TASK
all the countries in the world have agreed that more certainty is required in transnational commercial law, and that harmonising national laws dealing with cross-border commerce generally, with particular focus on the numerous types of contractual relationships is worthwhile, either by producing harmonised substantive law or further harmonisation of national conflict of law rules relevant to international commerce and trade.
Each country has agreed to contribute financially to this project, as a result of which there are considerable funds available to ensure the highest quality of the work and its outcome. However, the instrument can only take one of the following forms:
Your instrument is (CONVENTION)
There is significant debate amongst the parties involved in the harmonisation process regarding the most appropriate approach to take (harmonising substantive law OR conflict of law rules) and which type of instrument of harmonisation should be used. A specialist panel has been established to make a final determination on this matter. Once this decision has been made, the process of drafting the chosen instrument will begin.
You will need to explain clearly why you think your suggested approach and the proposed type of instrument are best suited to this harmonisation project and, therefore, bring more certainty to transnational commercial law, explaining the reasons for this choice. You may also want to anticipate what other submissions will be made before the panel by those advocating for a different type of instrument
Your answers should cover at least the following:
– Why your instrument is the best for this particular project (by reference to its advantages/disadvantages) and what aids there might be to ensure uniform interpretation of this type of instrument.
– The institution you think would be best suited to arrange and control the whole harmonisation process, including drafting the instrument and why.
Notes:
*We will have questions and arguments at the end of the seminar .so I need clear answers also focus on the main questions and instrument.
International Commercial Law
More certainty is required from transnational commercial law and harmonizing national laws that deal with cross-border commerce. Unification involves an instrument that is applied, and its applications are similar in a way that avoids practical differences harming such application. Convection is the best instrument for reaching harmonization through finding a source of inspiration in interpreting and drafting towards the facilitation of commercial relations and harmonic co-existence. The conflict of laws rules involves the strict relation to an instrument in a way the parties are allowed to make a decision, and in a way, the applicator is allowed to apply. The harmonizing approach involves instruments that have components of conflict of law rules. International commercial law has material rules instruments that are given preference with the incorporation of conflict of laws rules to regulate the application of harmonization and unification instruments. Harmonizing and unification to the relevant international commerce and trade is the best approach through producing harmonized substantive law.
Convention involves a binding agreement between states. These agreements are stronger than declarations in that they bind the government that signed legally. Convection creates international norms and standards. Conventions are flexible for ratification, acceptance, and accession by states and make defining rules which states undertake to comply. Governments can be censured by the applicator for violation of standards set in the convention, which increases harmonization and unification. The application of international convention in commercial law gives effect to the measures that aim at achieving international uniformity. International convention can achieve uniformity by involving courts in the interpretation of the rules similar to the national laws. International conventions offer more certainty to transnational commercial law.
References
Heidemann, M. (2018). Object and Purpose as Interpretation Tool in International Commercial Law Conventions: How to Make the ‘Top Down Approach’Work. In The Future of the Commercial Contract in Scholarship and Law Reform (pp. 407-435).
Mijatovic, M. D. (2018). The currentness of the UNIDROIT principles of international commercial contracts: Effects of bottom-up method of law harmonization. Zbornik Radova, 52, 323.
