How Transnational Law Complicates Treaty Interpretation

29 Pages Posted: 18 Aug 2021 Last revised: 8 Dec 2021

See all articles by Steven D. Walt

Steven D. Walt

University of Virginia School of Law

Bruno Zeller

University of Western Australia - Faculty of Law

Date Written: August 16, 2021

Abstract

International commercial law conventions (or “transnational law”) increasingly have become the legal device of choice regulating international commercial transactions. These treaties contain substantive provisions that define the legal entitlements of parties to transactions within their scope. At the same time, they also mandate how the treaty’s text is to be interpreted. In particular, international commercial law conventions require that uniformity be taken into account in interpreting the text. UNCITRAL conventions, such as the CISG, are the most prominent example of these international commercial law conventions. An international convention, once ratified, displaces domestic law to the extent that domestic law is inconsistent with the convention’s provisions. But the incorporation of international commercial law conventions into domestic law has a further legal consequence. Its incorporation adds a method of textual interpretation for transnational law—"the uniformity directive”--to the methods in force in domestic law for the interpretation of treaties. As a result, the interpretation of transnational law texts relies on both generally applicable methods of treaty interpretation and interpretive methods specific to transnational instruments.

We maintain that international commercial conventions, once incorporated into domestic law, make legal interpretation more difficult and its results less predictable. Textual interpretation of transnational law is made more difficult not because transnational law introduces substantive rules into a legal system that differ from those of domestic law. Any incorporation of transnational law into national law does this. Instead, transnational law makes its interpretation more complex and less predictable because it introduces an interpretive method that differs from the methods for interpreting treaties generally. The increased difficulty in interpretation is exhibited in the tendency to rely on well-known domestic law methods to interpret transnational law.

Keywords: international commercial law, treaties, treaty interpretation

Suggested Citation

Walt, Steven D. and Zeller, Bruno, How Transnational Law Complicates Treaty Interpretation (August 16, 2021). Virginia Public Law and Legal Theory Research Paper No. 2021-36, Available at SSRN: https://ssrn.com/abstract=3905904

Steven D. Walt (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
804-924-7930 (Phone)
804-924-7536 (Fax)

Bruno Zeller

University of Western Australia - Faculty of Law ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

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