Harmonizing Values, Not Laws: The CISG and the Benefits of a Neo-Realist Perspective
Nordic Journal of Commercial Law, Issue 1, 2008
36 Pages Posted: 16 Jul 2009
Date Written: December 1, 2008
Legal Realists have been, perhaps, the harshest critics of the United Nations Convention on Contracts for the International Sale of Goods (“CISG” or “Convention”). This school of legal thought holds that beneath the veneer of scientific and deductive reasoning of “mechanical jurisprudence” are legal rules and concepts - that is, legal doctrine - that are often indeterminate, and these are rarely as neutral as they appear. At the international level, the Realists would have us believe that efforts to create uniform national laws through international treaties or conventions, such as the CISG, are subject to the same degree of uncertainty as domestic rule-making.
The open-textured nature of the CISG, combined with its attempt to strike a balance among different legal systems, and a variety of competing national interests, provides a compelling opportunity to examine the Legal Realist theory of law. Within this context, Legal Realism would suggest that beneath the black letter text of the CISG are legal rules, concepts, and reasoning that are indeterminate. More specifically, the Realist perspective would suggest that the Convention is too ambiguous, or is inherently flawed, and is of little practical use as a uniform law in the international realm. Extrapolating from the Realist approach to the Convention suggests that the CISG will ultimately fail to achieve uniformity in international sales law. In this view, uniform judicial rule-making across jurisdictions is too unpredictable to be of practical use.
This paper will argue that the Legal Realists have been searching for the perfect uniform law, but this quest is misguided. While it might be possible to conclude that the unification of international commercial law is technically impossible, it is equally unrealistic to expect perfect uniformity and predictability in the application of case law involving the CISG - or for that matter, any other law. What uniform laws in general provide for is international acceptance of similar norms, and a common medium for communication - a lingua franca. This is a form of international commercial law that is more helpful and predictable than the present set of competing national systems and interests. Thus, what is required is a “Neo-Realist” approach to the CISG. This identifies the values and norms underlying the technical rules of international sale of goods law. From this perspective, the CISG must be seen not only as an attempt to harmonize rules, but more importantly, the values about the conduct of international sales transactions.
Keywords: CISG, UN Convention on Contracts for the International Sale of Goods, International Sales Law, International Commercial Law, Legal Norms, Legal Realism, International Private Law
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