Article by Ole Lando
In this Article, I shall not do what has been expected of me. I shall not treat in general terms the use of foreign, international, and comparative material by legislators and courts. Instead, I will describe how the various laws and legal material influenced those who made the Principles of European Contract Law (PECL), which were prepared by the Commission on European Contract Law (CECL), and the Principles of International Commercial Contracts (UNIDROIT Principles or UNIDROIT), which were drafted by a working group established by the International Institute for the Unification of Private Law (UNIDROIT).
These two sets of rules have no legal authority and may seem less important than the codes, conventions, and uniform laws that are in force. Nevertheless, I will treat these rules because, as a member of the groups, I have seen how they worked and how they have used the available sources. Furthermore, their work has given me a better picture of the use of comparative law by lawmakers than the other groups in which I have worked.
Both groups are relatively small. The UNIDROIT group counts less than twenty members. The CECL has had twenty to twenty-five members. The members of each of the two groups have worked closely together for many years and have gotten to know each other well. Many of them have become friends, and, as friends, they have been more prepared to speak freely to each other. The members are familiar with the methods and techniques of comparative law; most of them are academics and many of the academics are also practicing lawyers. And then they are independent. The CECL and the UNIDROIT group both believe that the best uniform rules are made by lawyers who do not take instructions from any government and do not professionally belong to any specific interest group. I worked in the United Nations Conference on Trade and Development (UNCTAD), when, in the late seventies and early eighties, it prepared a Code of Conduct for the Transfer of Technology Law, and in other international conferences in which many of the delegates were officials or diplomats whom their government had instructed to have some very definite views. Several of them knew little of the subject matter and of each other's laws. The debates were often political manifestations without much substance, and the outcome was poor.
The United Nations Convention on Contracts for the International Sale of Goods (CISG) has had a considerable influence on the UNIDROIT Principles and the PECL. Taken together, the CISG, the PECL, and the UNIDROIT Principles are an emerging jus commune, the gospels for the future world law of contract. I shall explain that later.
About the Author
Ole Lando. Professor Emeritus, Copenhagen Business School (Denmark); President of the Commission of European Contract Law.
Citation
75 Tul. L. Rev. 1015 (2001)