From Harmonized Legislation to Harmonized Law: Hurdles and Tools, Judicial and Arbitral Perspectives

Fabien Gélinas, “From Harmonized Legislation to Harmonized Law: Hurdles and Tools, Judicial and Arbitral Perspectives” in Frédéric Bachand & Fabien Gélinas, eds, The UNCITRAL Model Law After 25 Years: Global Perspectives on International Commercial Arbitration (Huntington, NY: JurisNet, 2013) 261

16 Pages Posted: 3 May 2014

Date Written: December 31, 2013

Abstract

Although the 1985 version of the Model Law was silent on the question of its own interpretation, there was a relatively clear sense among informed commentators that judges ought to read and apply it in a spirit of international harmonization. This was made explicit in the 2006 revision, which now includes a provision stating that in the interpretation of the Model Law, “regard is to be had to its international origin and to the need to promote uniformity in its application.”

In spite of its obvious importance for the effectiveness of the Model Law, the difficult question of harmonious interpretation has not received as much attention as one might expect. The travaux préparatoires relating to article 2A leave the observer with the impression of a provision that was easily adopted but not necessarily considered in depth. In fact, the question of harmonious interpretation is fraught with theoretical and practical difficulties that call into question the way in which we conceive of law, and particularly the relationship between what judges see as domestic law on the one hand, and foreign, transnational, or international law on the other. In every jurisdiction these difficulties challenge — or at least should challenge, constructively — received conceptions about the relevance of various sources of legal information and the implicit legal assumptions we make about the interpretive community within which the judge’s work takes place.

In this paper, I propose to review some of the more practical hurdles encountered on the road to harmonious interpretation, and to look at some of the tools and strategies that may help in overcoming these hurdles. The identification of the hurdles requires a prior discussion of the objective of harmonious interpretation, which is the subject of Part I. The tools that may be sued in the pursuit of this objective are reviewed in Part II. Part III looks at the importance of arbitral practice in Model Law interpretation, and Part IV offers some reflections on the role of the judge in this context.

JEL Classification: K10, K33, J52, D74

Suggested Citation

Gelinas, Fabien, From Harmonized Legislation to Harmonized Law: Hurdles and Tools, Judicial and Arbitral Perspectives (December 31, 2013). Fabien Gélinas, “From Harmonized Legislation to Harmonized Law: Hurdles and Tools, Judicial and Arbitral Perspectives” in Frédéric Bachand & Fabien Gélinas, eds, The UNCITRAL Model Law After 25 Years: Global Perspectives on International Commercial Arbitration (Huntington, NY: JurisNet, 2013) 261, Available at SSRN: https://ssrn.com/abstract=2420468

Fabien Gelinas (Contact Author)

McGill University ( email )

3644 Peel Street
Montreal, Quebec H3A1W9
Canada

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