The CISG Convention and Thomas Franck's Theory of Legitimacy
58 Pages Posted: 17 Nov 2010
Date Written: 1998
The Contracts for the International Sale of Goods (CISG) Convention is one of the most talked-about, and written-about, aspects of international commercial law. SS time progresses, it may become evident that significant numbers of commercial actors and significant numbers of courts and other adjudicatory bodies are simply choosing not to apply the Convention. In such event, the question as to why there should be such a reluctance to adopt the Convention will present itself.
This Article finds helpful perspective on this question in the work of international legal scholar Thomas Franck. Specifically, guidance is drawn from the theory of international legitimacy developed in Professor Franck's 1990 book, The Power of Legitimacy Among Nations, and in his earlier Article, Legitimacy in the International System. Under Franck's theory of legitimacy, each rule of international law exerts a greater or lesser "pull to compliance" to the extent the rule is characterized by greater or lesser legitimacy. Legitimacy itself is analyzed in terms of four factors: determinacy, symbolic validation, coherence and adherence.
This theory of legitimacy applies not only for states in the international community, but also for other international actors. This Article asserts that one reason the CISG may not experience more complete success is that the Convention is, in the sense of Professor Franck's theory, substantially illegitimate.
In so doing, this Article compares the CISG Convention with certain other international laws and rules governing other types of business transactions. It will show that every one of these other laws and rules has been more successful than the CISG. This Article then illustrates that these laws and rules have significantly more legitimacy, in Professor Franck's sense, than the CISG. While it cannot at this stage be proven that the greater legitimacy of these international legal rules is the cause of their greater success, the inference is sufficiently strong to warrant serious interest.
Accordingly, the Article concludes that, in order for the CISG Convention to achieve its maximum range of success, certain adjustments in the manner in which it will be enforced and applied may be appropriate to increase international legitimacy.
Keywords: International law, contract law, UNCITRAL, Hague Conventions
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