Harmonization and Modernization in UNCITRAL's Legislative Guide on Insolvency Law

Abstract:     
To meet the challenges of the 21st Century, UNCITRAL (the United Nations Commission on International Trade Law) has done more than simply reform trade law; it has also reconceived its mission and the means by which it carried out its central purposes. Although the UN resolution creating UNCITRAL initially spoke in terms of the progressive harmonization and unification of the law of international trade, UNCITRAL now defines its mission as the modernization and harmonization of trade law. UNCITRAL's adoption of modernization as a goal both expands its organizational reach and demands technologies that will underwrite its expansive aspirations. As UNCITRAL has shifted its focus toward modernization, it has invented new legal technologies - guides to enactment, recommendations, model legal provisions, and legislative guides - that offer greater flexibility to reform a broader range of laws, especially with the benefit of time and incremental progress. One such technology, UNCITRAL's Legislative Guide on Insolvency Law, combines a range of legislative recommendations with explanatory commentary. The array of linguistic forms in which the recommendations were expressed in the Guide, and the combination of commentary with recommendations, gave UNCITRAL the flexibility to adjust its level of prescription to the level of consensus it could achieve and, as a result, the flexibility to modernize insolvency law. UNCITRAL's efforts to modernize the law of international trade are not inconsistent with its mandate to pursue the harmonization and unification of trade law. A legislative guide offers national actors a wider range of choices, albeit within limits. As a result, the decision to promulgate a legislative guide might in practice result in greater harmonization on the ground than a model law or convention.

Number of Pages in PDF File: 49

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