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CREATIVITY AND TRANSNATIONAL COMMERCIAL LAW: FROM CARCHEMISH TO CAPE TOWN

Published online by Cambridge University Press:  14 December 2020

Roy Goode
Roy Goode*
Affiliation:
Emeritus Professor of Law in the University of Oxford and Emeritus Fellow of St John's College, Oxford, [email protected].
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Abstract

This article examines the creative aspects of a range of international commercial law instruments which have in common that they seek to bypass traditional doctrine in order to increase commercial efficiency and ease of transacting. In short, the purpose of the harmonising measure is functional in that it seeks to overcome a serious obstacle to cross-border trade by providing commercially sensible solutions to typical problems regardless whether this disturbs established legal theory, which should always the servant of the law, not its master. Creativity applies not only to the formulation of an instrument but also to its interpretation. Those entrusted with preparing a commentary on the detail of such an instrument are likely to face difficult issues of interpretation which may take years to surface and may only be resolved by a willingness to risk error in order to provide the reader with clear guidance rather than sheltering behind the presentation of alternative interpretations, while at the same time resisting the temptation to ascribe to words in a convention the meaning they would have under one's own national law.

At least one of the instruments examined was conceptually flawed; it is mentioned to highlight the danger of over-ambition in delineating the sphere of application of the convention concerned. Undisciplined creativity comes at a cost. Another convention, and a highly successful one, is referred to only to demonstrate the value of creative ambiguity.

Keywords

private international lawcreativityharmonisationbusiness practicecodificationfunctiondoctrine
Type
Articles
Information
International & Comparative Law Quarterly , Volume 70 , Issue 1 , January 2021 , pp. 1 - 28
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press for the British Institute of International and Comparative Law

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Footnotes

This article is a revised and updated version of a contribution to the Festschrift für Herbert Kronke (edited by Christoph Benicke and Stefan Huber), a collection of essays in honour of an internationally renowned German jurist, and is published by kind permission of the publishers Gieseking Verlag, omitting the tribute to the honorand. I am indebted to Professor Michael Bridge for clarifying the application of the concept of good faith under Article 7(1) of the Convention on Contracts for the International Sale of Goods and to Professor Charles Mooney for saving me from errors in relating to the UNIDROIT Convention on Substantive Rules for Intermediated Securities.

References

1 Before the domestication, around 4,000 BC, of the horse, the camel and the mule for use as a means of transport of goods and communication, traders either had to undertake a sea voyage or to travel on foot carrying their wares with them. The invention of the wheel in about 3,500 BC transformed the transportation of goods.

2 Huvelin, P, Essai Historique Sur le Droit Des Marchés & Des Foires (A Rousseau 1897) 338Google Scholar: ‘L'idée essentielle de laquelle découle toute l'histoire interne des marchés et des foires, l'idée qui a enfanté tout l'organisme, c'est l'idée de la paix …’ (‘The essential idea from which flows the entire internal history of markets and fairs, the idea which gave birth to the entire system, is the idea of peace…’). In this fine work Huvelin himself acknowledged his debt to the remarkable multi-volume work of the Goldschmidt, German scholar Levin, Universalgeschichte des Handelsrechts (Verlag von Ferdinand Ente 1891)Google Scholar.

3 Goethe, JW, Faust. Der Tragödie zweiter Teil (JG Cotta 1832) 304Google Scholar (‘War, trade and piracy: an inseparable Holy Trinity’).

4 Sanborn, FR, Origins of the Early English Maritime and Commercial Law (Century Company 1930, reprinted Professional Books 1989) 4–7Google Scholar; Bewes, WA, The Romance of the Law Merchant (Sweet & Maxwell 1923) 74Google Scholar.

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6 The American Law Institute and the National Conference of Commissioners on Uniform State Laws, Uniform Commercial Code (2017–2018 edn, Thomson Reuters 2017).

7 Goode, R, ‘Private Commercial Law Conventions and Public and Private International Law: The Radical Approach of the Cape Town Convention 2001 and Its Protocols’ (2016) 65(3) ICLQ 523CrossRefGoogle Scholar, reproduced in Goode, R, The Development of Transnational Commercial Law: Policies and Problems (Oxford University Press 2018) Ch 16Google Scholar.

8 Gutteridge, HC, Comparative Law (2nd edn, Cambridge University Press 1949) 157Google Scholar.

9 The current edition is Code Civil (120th edn, Dalloz 2020).

10 J-É-M Portalis, Discours préliminaire du premier projet de Code civil (1801) <https://mafr.fr/IMG/pdf/discours_1er_code_civil.pdf> 16. (‘We have also guarded against the dangerous ambition of wanting to regulate everything and to foresee everything. Who could believe that the very same people for whom a code always seems too voluminous are also the ones who dare to imperiously charge the lawmaker with the terrible task of leaving nothing to the judge's discretion?’) Earlier in the same discourse Portalis had emphasised (at 14) that laws are made for people and not people for laws, a philosophy rather different from that of abstract, conceptual types of code.

11 For a detailed analysis see Toth, O, The Lex Mercatoria in Theory and Practice (Oxford University Press 2017)CrossRefGoogle Scholar.

12 See Goode, R, ‘Usage and Its Reception in Transnational Commercial Law’ (1997) 46(1) ICLQ 1CrossRefGoogle Scholar, reproduced in R Goode, The Development of Transnational Commercial Law: Policies and Problems (n 7) Ch 18.

13 The current edition is International Chamber of Commerce, ICC Uniform Customs and Practice for Documentary Credits (ICC Pub No 600, rev edn 2007) (UCP 600).

14 International Chamber of Commerce, ICC Uniform Rules for Demand Guarantees (ICC Pub No 758, rev edn 2010) (URDG 758).

15 For a detailed discussion see Goode, R, ‘Abstract Payment Undertakings’ in Cane, P and Stapleton, J (eds), Essays for Patrick Atiyah (Oxford University Press 1991) Ch 9Google Scholar, reproduced in Goode, R, Fundamental Concepts of Commercial Law: Fifty Years of Reflection (Oxford University Press 2018) Ch 3Google Scholar.

16 This is not specifically stated in the UCP but is expressly provided for in art 4(a) of the URDG.

17 No bank would wish to invoke want of consideration as invalidating its payment undertaking, for fear of destroying its reputation. A bank's liquidator might conceivably do so but is likely to be deterred by the thought that the chance of a court striking such an instrument down is remote, and also by the fact that the bank itself may suffer if, eg, it has advanced funds against a back-to-back credit.

18 Code Civil (n 9) art 2321.

19 Convention Relating to a Uniform Law on the International Sale of Goods (adopted 1 July 1964, entered into force 18 August 1972) 834 UNTS 107.

20 United Nations Convention on Contracts for the International Sale of Goods (adopted 11 April 1980, entered into force 1 January 1988) 1489 UNTS 3 (CISG).

21 The degree of success cannot readily be measured because the parties are free to exclude the Convention in its entirety or modify its provisions. But by any yardstick the number of ratifications is impressive.

22 This was somewhat alleviated by art III of the Convention permitting a Contracting State to limit the application of the Uniform Rules to cases where each of the parties to the contract of sale had its place of business in different Contracting States.

23 One of only nine States to ratify the Convention.

24 Art V.

25 The exclusion of any connecting factor was described as a ‘shocking result’ attributable to the intransigence of the drafting committee, by Nadelmann, KH, ‘The Uniform Law on the International Sale of Goods: A Conflict of Laws Imbroglio’ (1965) 74(3) Yale LJ 449, 457CrossRefGoogle Scholar.

26 In his fascinating book Music as Alchemy (Faber & Faber 2012) Tom Service recounts his discussion with Sir Simon Rattle while conductor of the Berlin Philharmonic Orchestra, when he would implore them by gesture to give him ‘still more sound and more excitement’, conductor and orchestra pushing each other to previously unknown heights. ‘The danger with these people’ said Rattle, is that if you ask more and more, they will give you more and more and more. Here, if you ask them, they'll drive off the cliff – with pleasure!’

27 Schlechtriem, P and Schwenzer, I, Commentary on the UN Convention on the International Sale of Goods (CISG) (I Schwenzer ed, 4th edn, Oxford University Press 2016) art 7, paras 16–17Google Scholar.

28 ibid 136, art 7, para 32, fn 106. It is noteworthy that this magisterial work does not subscribe to the view that art 7 goes beyond interpretation.

29 Art 242 of the BGB imports a general principle of good faith which has generated a huge volume of case law and commentary. In practice it tends to be used as an underpinning of more specific provisions of the BGB.

30 Rowan, S, ‘The New French Law of Contract’ (2017) 66(4) ICLQ 805, 814CrossRefGoogle Scholar, though it is fair to say that these are given only as examples. See also more generally on the new code Cartwright, J and Whittaker, S (eds), The Code Napoléon Rewritten (Hart Publishing 2017)Google Scholar.

31 Schlechtriem and Schwenzer, Commentary on the UN Convention on the International Sale of Goods (CISG) (n 27) art 7, para 17; Bridge, M, ‘Good Faith, the Common Law and the CISG’ (2017) 22(1) UnifLRev 98Google Scholar.

32 See Honnold, J, Uniform Law for International Sales (3rd edn, Kluwer Law International 1999) paras 94ffGoogle Scholar.

33 UNIDROIT Convention on International Financial Leasing (adopted 28 May 1988, entered into force 1 May 1995) 2321 UNTS 195 art 1.

34 ibid art 2.

35 The position is alleviated in jurisdictions the laws of which allow a third party to enforce a contract made for its benefit.

36 Convention on International Financial Leasing (n 33) art 10. The problem of want of privity of contract has also been overcome in relation to investment disputes. The 1966 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) provides that an investor in a host Contracting State who is a national of another Contracting State party to an investment treaty with the host State may, though not itself a party to the treaty, request an arbitration of a legal dispute arising directly out of an investment between the investor and the host State. Both the investor and the Contracting State of which it is a national must consent in writing to the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID).

37 Convention on International Financial Leasing (n 33) art 8(1)(a).

38 Convention on International Financial Leasing (n 33) art 2.

39 UNIDROIT, ‘UNIDROIT Model Law on Leasing’ (2008) Study LIXA – Doc. 17, which unlike the Convention is not confined to finance leases. It is unusual for a sponsoring organisation to provide an alternative to one of its own instruments, particularly when that instrument has entered into force, but it was hoped that what could not secure widespread adoption on the international plane might achieve a similar result through the harmonisation of national laws. The Preamble to the Model Law records that the Convention had not only removed legal impediments to international financial leasing but also frequently served as an important reference point for States drafting their first leasing laws.

40 UNIDROIT Convention on International Factoring (adopted 28 May 1988, entered into force 1 May 1995) 2323 UNTS 373.

41 ibid art 6(1).

42 ibid art 6(2). In retrospect this was a mistake: the debtor should always have an absolute right to refuse to recognise the title of the assignee. The mischief which Article 6(1) was designed to overcome was an invalidation of the assignment as between assignor and assignee. The debtor has no legitimate interest in the invalidation of such an assignment, which would have the effect that on the insolvency of the assignor, the assignee, having paid for the assigned receivables, would be left to prove as an unsecured creditor in the winding-up. The assignment should be considered effective as between the parties as a matter of property law, with the result that while the debtor's obligation would remain owed only to the assignor, the latter would have to account for the collected proceeds to the assignee.

43 United Nations Convention on the Assignment of Receivables in International Trade (adopted 12 December 2001) <https://uncitral.un.org/en/texts/securityinterests/conventions/receivables>.

44 UNCITRAL, UNCITRAL Legislative Guide on Secured Transactions (United Nations 2010) paras 106–110.

45 See, for example, the (UK) Business Contract Terms (Assignment of Receivables) Regulations 2018 (SI 2018/1254), which provides that, with specified exceptions, a term in a contract has no effect to the extent that it prohibits or imposes a condition, or other restriction, on the assignment of a receivable arising under that contract or any other contracts between the same parties (reg 2(1)), ‘receivable’ being defined as a right to payment for the supply of goods, services or intangible assets (reg 1(3)).

46 UNCITRAL, UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation (United Nations 2014).

47 Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) [2015] OJ L141/19.

48 Initially in ‘The Unification of the Law of International Trade’, an address to Gothenburg University in 1964, followed by the preparation of the preliminary draft of a report for the United Nations proposing the establishment of UNCITRAL, a proposal adopted by unanimous resolution of the UN General Assembly in December 1966.

49 In its early days, UNCITRAL took over drafts initially prepared by UNIDROIT, such as ULIS, but thereafter UNIDROIT organised its own diplomatic conferences to adopt its draft instruments.

50 LoPucki, LM, ‘The Case for Cooperative Territoriality in International Bankruptcy’ (2000) 98(7) MichLRev 2216, 2223–7Google Scholar.

51 UNCITRAL Model Law on Cross-Border Insolvency (n 46) 8, art 16(3).

52 ‘Foreign’ as viewed from the perspective of the courts of ‘the enacting State’, that is, another State that has adopted the Model Law and in which insolvency proceedings have been opened.

53 To date, legislation based on the Model Law has been enacted in 48 States, the process being assisted by the UNCITRAL Guide to Enactment of the UNCITRAL Model Law accompanying the Model Law itself.

54 UNCITRAL, UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments with Guide to Enactment (United Nations 2019).

55 See, for example, the decision of the UK Supreme Court in Rubin v Eurofinance [2013] 1 AC 236.

56 Not because it was opposed to the content of the Convention but because of the EU's refusal to lift the ban on the export of British beef imposed on account of anxiety about mad-cow disease, coupled with concerns about threats to the UK's sovereignty over Gibraltar, leading to the UK's policy of non-cooperation with the EU.

57 Council Regulation (EC) 1346/2000 of 29 May 2000 on Insolvency Proceedings [2000] OJ L160/1, later superseded by Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) [2015] OJ L141/19.

58 Termed ‘secondary proceedings’ where main proceedings have already been opened but otherwise conveniently labelled ‘independent proceedings’.

59 The latest version being published in 2016. UNIDROIT, UNIDROIT Principles of International Commercial Contracts (4th edn, UNIDROIT 2016) (UPICC).

60 Published in three Parts, Part III being published in 2003. The Commission on European Contract Law, Principles of European Contract Law, Part III (O Lando, B Clive, A Prüm and R Zimmermann eds, Kluwer Law International 2003) (PECL).

61 Which can conveniently be termed ‘Restatements’, adopting the label of the American Restatement of Contracts, though like ICC Uniform Rules they do not merely restate existing rules but also develop them.

62 That is, they are not excludable by the parties. These include the principles of good faith and fair dealing, the provisions on fraud, threat, illegality and the like, and the preclusion of a party from acting inconsistently with its prior conduct on which the other party has relied or from excluding judicial review of grossly excessive penalty clauses. As to how restatements, which in most legal systems do not have the force of law and operate purely as a matter of contract, can themselves contain mandatory rules, see Goode, R, ‘International Restatements and National Law’ in Swadling, W and Jones, G (eds), The Search for Principle (Oxford University Press 1999) 45, 51–2Google Scholar, reproduced in R Goode, The Development of Transnational Commercial Law (n 7) Ch 3.

63 See Bonell, MJ, ‘The Law Governing International Contracts and the Actual Role of the UNIDROIT Principles’ (2018) 23(1) UnifLRev 15Google Scholar. Professor Bonell was the progenitor of the UPICC and the Chairman of the successive Working Groups and remains the driving force behind their application.

64 H Kronke, ‘The UN Sales Convention, the UNIDROIT Contract Principles and the Way Beyond’ (2005–06) 25 JL&Com 451, 456–7. For a detailed examination of the question see J Kotrusz, ‘Gap-Filling of the CISG by the UNIDROIT Principles of International Commercial Contracts’ (2009) 14(1–2) UnifLRev 119.

65 Study Group on a European Civil Code and Research Group on the Existing EC Private Law (Acquis Group), Principles, Definitions and Model Rules of European Private Law Draft Common Frame of Reference (DCFR), edited by C von Bar, E Clive and H Schulte-Nölke (Sellier 2009). In conception it was a European Civil Code but it was thought prudent to avoid this label.

66 For an overview see Giliker, P, ‘The Draft Common Frame of Reference: Moving from the “Academic” to the “Political”. A Comparative Lawyer's Perspective’ in Devenney, J and Kenny, M (eds), The Transformation of European Private Law: Harmonisation, Consolidation, Codification or Chaos (Cambridge University Press 2013) 23Google Scholar.

67 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law’ COM (2011) 635 final.

68 Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems [1998] OJ L166/45.

69 Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements OJ L168/43.

70 Convention on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary (adopted 5 July 2006, entered into force 1 April 2017) 46 ILM 649 (Hague Securities Convention). The Convention was in fact adopted in December 2002 but the practice of the Hague Conference at that time was to treat its conventions as drafts until the first signature, the text meanwhile undergoing toilettage.

71 ibid arts 2(1) and 2(2). See generally R Goode, H Kanda and K Kreuzer (eds), with the assistance of C Bernasconi, Hague Securities Convention Explanatory Report (Hague Conference on Private International Law 2003, issued as a 2nd edition in 2017 in a new format but with no significant change); R Goode, ‘The Hague Convention on Intermediated Securities’ in The Development of Transnational Commercial Law (n 7) Ch 14.

72 Hague Securities Convention (n 70) art 2(3)(a). ‘Purely contractual’ denotes contractual questions not related directly to the securities, such as the standard of care, the frequency of account, etc. But a contractual claim to delivery or transfer of securities is within the Convention.

73 This was organised by Mr Richard Potok, initiator of the project and its Legal Advisor, who went to great lengths to solicit views from all participants, usually in the form of three-hour telephone conferences which were highly successful and saved a great deal of time later even if, as he has been gracious enough to acknowledge, they did induce among those who participated a state of rigor mortis!

74 For example, the account is opened with the intermediary in State A, account statements and dividends are sent to the client from State B, while advice as to the state of the account from time to time is sent from State C.

75 Uniform Commercial Code (n 6) art 8-110|(e).

76 Hague Securities Convention (n 70) art 4(1).

77 Hague Securities Convention (n 70) art 4(1)(a), a provision designed to avoid a capricious selection of the applicable law.

78 UNIDROIT Convention on Substantive Rules for Intermediated Securities (adopted 9 October 2009) <https://www.unidroit.org/instruments/capital-markets/geneva-convention>.

79 For a detailed analysis which includes the history of each provision see H Kanda, C Mooney, L Thévenoz and S Keijser, assisted by T Keijser, Official Commentary on the UNIDROIT Convention on Substantive Rules for Intermediated Securities (Oxford University Press 2012). For a valuable recent publication covering a range of both legal and policy issues on intermediated securities, see Gullifer, L and Payne, J (eds), Intermediation and Beyond (Hart Publishing 2019)CrossRefGoogle Scholar.

80 By which is meant the domestic law of the relevant State, excluding its conflict of laws rules, since the doctrine of renvoi is rarely applied in commercial cases.

81 UNIDROIT Convention on International Interests in Mobile Equipment (adopted 16 November 2001, entered into force 1 March 2006) 2307 UNTS 285 (Cape Town Convention); UNIDROIT Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (adopted 16 November 2001, entered into force 1 March 2006) 2367 UNTS 517 (Aircraft Protocol); UNIDROIT Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock (adopted 23 February 2007) (Luxembourg Protocol) <http://www.unidroit.org/english/conventions/mobileequipment/railprotocol.pdf>; UNIDROIT Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets (adopted 9 March 2012) (Space Protocol) <http://www.unidroit.org/english/conventions/mobile-equipment/spaceassetsprotocol-e.pdf>.

82 Cape Town Convention (n 81) art 2.

83 Cape Town Convention (n 81) art 49(1). The Convention and Aircraft Protocol entered into force on 1 March 2006, not on 1 April 2004, not by reference to the deposit of the third instrument of ratification, which would have brought the Convention and Aircraft Protocol into force on 1 April 2004.

84 Cape Town Convention (n 81) art 29(1). Remarkably, with the exception of provisions relating to the assignment of associated rights, all the rules on priorities are governed in Article 29.

85 Cape Town Convention (n 81) art 39.

86 Cape Town Convention (n 81) art 40.

87 Cape Town Convention (n 81) art 30(1).

88 Cape Town Convention (n 81) art 30(3)(a).

89 Rights to payment or other performance due or to become due to a debtor by any person with respect to a space asset (Space Protocol art I(2)(a)), eg rental or licence fees for access to the debtor's satellite.

90 For obvious reasons, a creditor's recourse to the physical space asset is limited, so that the creditor relies mainly on the debtor's income stream. In other words, space financing is in substance project finance rather than asset finance.

91 Prepared by the Preparatory Commission as Provisional Supervisory Authority.

92 Space Registry Regulations, Annex 2, para 2. For the text of the regulations, see UNIDROIT Preparatory Commission for the Establishment of the International Registry for Space Assets Pursuant to the Space Protocol, ‘Summary Report of the Fourth Session’ (Rome 10–11 December 2015) Prep.Comm. Space/4/Doc. 7 rev. <https://www.unidroit.org/english/documents/2015/depositary/ctc-sp/pcs-04-07rev-e.pdf> Appendix III.