Article by Alejandro M. Garro
Significant reduction of trade barriers, coupled with the increased ease of communication and transportation, have turned national markets into international markets for many kinds of goods and services. These developments have nurtured a convergence of legal practices reflected in a fluid and ill-defined set of customs and trade usages doctrinally grouped under the loose rubric of lex mercatoria. Trade usages have been identified as the genuine engines driving harmonization and unification of commercial law, but have not yet evolved into a comprehensive and systematic set of rules on international commercial law. Indeed, the so-called lex mercatoria is in a constant state of flux, and it is only natural that opinions differ as to whether conditions are ripe for a codification of rules governing international commercial transactions. However, the truth of the matter is that there is hardly any area of the law, domestic or international, that is free of continuous change. Furthermore, the codification process in the area of international commercial law started almost a century ago and continues now at an accelerated pace through the work of international and intergovernmental organizations such as the United Nations Commission on International Trade Law (UNCITRAL), the International Institute for the Unification of Private Law (UNIDROIT), the Hague Conference on Private International Law (Hague Conference), the OAS Specialized Conference on Private International Law (CIDIP), and various private trade associations such as the International Chamber of Commerce (I.C.C.). Therefore, although it is always pertinent to question whether an area of the law is amenable to codification, it is only fair to acknowledge the existence of a considerable body of written rules on international commercial contracts. These include rules adopted by private trade associations, multilateral treaties adopted at diplomatic conferences, as well as contract rules backed by no other authority than their suitability to international commerce and the hard work put into their elaboration.
UNCITRAL and UNIDROIT have already taken significant steps towards fashioning a uniform international law of contracts by adopting the Vienna Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles). Admittedly, neither the CISG nor the UNIDROIT Principles will result in unification of law, at least in the immediate future. However, they provide helpful points of departure for lawyers, judges, and arbitrators all over the world who are seeking a comparative solution to a practical problem. Many of the goals set forth by the drafters of those international instruments would be achieved if the CISG and the UNIDROIT Principles succeed in assisting judges and arbitrators avoid national solutions to settle international disputes. By providing decision-makers with international criteria and principles upon which to base their decisions, both texts are likely to contribute to the unification of international sales law.
The rules set forth in the UNIDROIT Principles are self-described as “general,” not because of their abstract nature, but rather because they cover a broad area of contract law. Unless they are displaced by a rule of law that applies as lex specialis to a particular contract, the UNIDROIT Principles are meant to apply to every kind of international contract. The focus of this Article is on the coordination and convergence of the rules embodied in both texts, arguing in favor of the supplementation of the CISG by the UNIDROIT Principles whenever this gap-filling role is consistent with the intention of the parties and trade usages.
About the Author
Alejandro M. Garro. Visiting Professor of Law, Southern Methodist University; Adjunct Professor of Law, Senior Research Scholar, Parker School of Foreign and Comparative Law, Columbia University. J.D., University of La Plata (Argentina); LL.M., Louisiana State University; J.S.D., Columbia University.
Citation
69 Tul. L. Rev. 1149 (1995)