The Futility of Unification and Harmonization in International Commercial Law

Abstract

This paper challenges the conventional wisdom that unification and harmonization of international commercial law is desirable and should be pursued. Drawing from the literature on private legislatures, it argues that the expert groups that produce international conventions and model laws are likely to produce either vague norms that impose no significant constraint on domestic decisionmakers, or precise rules that benefit discrete interest groups. It illustrates this argument with examples from the Hague and Hamburg Rules, the Warsaw Convention, the Convention on the International Sale of Goods, the Uniform Customs and Practice for Documentary Credits, and the UNCITRAL Model Law on Cross-Border Insolvency. It advances arguments for an alternative regime of expanded contractual choice to select national law to govern these transactions.