Reproduced with permission from 8 Journal of Law and Commerce 207-212 (1988)

Introduction: The problem

Throughout the work on uniform laws realists have told us: Even if you get uniform laws you won't get uniform results. Those sad-faced realists were dead right -- as right as confirmed bachelors and spinsters who build their lives on the realistic view that there is no perfect spouse.

Why are the realists right? We lawyers have to work with blunt, unreliable tools -- words! Why can't we be as fortunate as our colleagues in the sciences who can write laws in formulas and numbers? Digital recordings turn the exquisitely nuanced sounds of a symphony into just two numbers -- zero and one. Perhaps some day we can use this technology in writing law: World-wide trade law on a compact floppy disk.

Until that day we must work with words -- mushy, ambiguous things even for ordinary communications. Edna St. Vincent Millay once wrote that translating the simple phrase "Home Sweet Home" into French would drive a Frenchman to Gallic gesticulation.

International unification of law raises these difficulties to a higher power. Laws often use concepts like "consideration", "trust" and "tort" -- local mental inventions that lack equivalent concepts in other legal systems. (Use of untranslatable civil law concepts was one reason the 1964 Sales Convention was rejected by the common law world.[1])

One may well conclude that this is the end of the story: As our sad-faced realists predicted, international unification is impossible. But before we despair, perhaps we should consider the alternatives: "conflicts" rules that are unclear and vary from forum to forum; national systems of substantive law expressed in doctrines and languages that, for many of us, are impenetrable. The relevant question is surely this: Is it possible to make law for international trade a bit more [page 207] accessible and predictable? As the "Sea Bees" say, the impossible takes a little longer: For international sales, as we have seen, it took more than half a century.

This is not the place to go into the efforts in UNCITRAL to minimize these problems -- the determined work in drafting to replace local legal idioms with references to facts of commercial life, and the cleansing (and humbling) effect of subjecting one's drafts, in multi-language versions, for review by commercial lawyers from diverse legal and linguistic settings.[2] Even with this help, we must face some troublesome pressures towards disharmony in application. Can they be minimized?

I. Construing the Uniform Law as an International Text

One threat to international uniformity in interpretation is a natural tendency to read the international text through the lenses of domestic law. Years of professional training and practice cut deep grooves. How can we avoid the tendency to think that the words we see are merely trying, in their awkward way, to state the domestic rule we know so well?

There are antidotes even to legal diseases. One is to look at the ways lawyers from other legal systems have read the international text. The literature on the Sales Convention already is extensive and will continue to grow as the law goes into force.[3] Traditional barriers to the use of scholarly writing in legal development broke down long ago in this country and is breaking down in citadels of literalism in other parts of the common-law world, especially in the handling of international legal materials. Of course, reliance on scholarly writing has long been an important resource in the civil law world. These and [page 208] other measures to enhance application of international rules was the subject of national reports and discussion at the Twelfth International Congress of Comparative Law, held in Australia in August 1986; the discussion in this paper relies heavily on this material.[4]

A second antidote for domestic bias is the international legislative history. This material may be indecisive but it can reveal the objective of a provision and thereby help in coping with novel situations where the statutory text is unclear. At the very least, examining the law's genetic background in its international setting should counteract the tendency to assume that the international text is merely attempting to reproduce the details of our domestic law. The legislative history of the 1980 Sales Convention can be found in the first ten volumes of the UNCITRAL Yearbooks and in the Official Records of the Vienna Conference.[5] The receptiveness of national courts to the use of legislative history to enhance a uniform interpretation of international rules was confirmed in the materials and discussions at the above-mentioned International Congress of Comparative Law.[6]

II. "Gaps": Common Law and Civil Law Approaches

We now turn to a fundamental difference in approach between the common law and civil law worlds: The handling of "gaps" in a statute or Code.

In the common-law world what do we do when we hit a "gap" in [page 209] the usual private law structure? The Uniform Commercial Code gives the standard answer: Section 1-103 (a provision of Article I, applicable throughout the UCC) says:

Unless displaced by the particular provisions of this Act, the principles of law and equity including . . . [eleven examples] shall supplement its provisions.

One might think that the UCC is so detailed that there would be little need to look elsewhere to supplement its provisions. However, the Uniform Commercial Code is not a "Code" in the civil law sense of the word: The UCC does not lay out the basic rules of contracts and torts ("obligations") and generally applicable remedial principles that are needed to solve problems that arise beyond the borders of the specific rules. The remarkable extent to which courts have called on the surrounding "ocean of the common law" has been documented by an important book of over a thousand pages by Professors Hillman, McDonnell and Nickels.[7]

This common-law use of non-statutory authority is inconsistent with the basic theory of civil-law codes, which were designed to displace the entire body of pre-existing law -- a premise that is illustrated by the principle that cases must be decided by reference to an article of the code. In spite of this restriction, solutions have been found by extending the codes’ provisions, by analogy or brute strength, to meet the myriads of new problems that have arisen during the past century.

How does the 1980 Sales Convention deal with this problem of gaps? A delicate compromise position between common law and civil law approaches is embodied in Article 7(2):

Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it was based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.

How will the courts in different regions handle this provision? If judges simply follow habit, common law courts will be less inclined than civil law courts to extract "general principles" from the Convention and, conversely, will be more likely than civil law courts to see a "gap" in the statute that requires the use of domestic law.

Scraps of domestic law developed to meet local problems are not [page 210] likely to provide the best nourishment for a modern law for international trade. Nor will decisions based on the domestic law of one country be given weight in other countries in the development of the body of coherent case-law for international trade. In short, the goal of unification calls for common law courts to resist hasty recourse to domestic rules, and instead to develop the approach, often applied to federal legislation, of gap filling by analogical application of the statute in order to effectuate its purpose.[8] To help give thoughtful attention to the special problems that arise in international unification of law, our Federal Judicial Center, regional judicial conferences, and similar bodies in other jurisdictions would be well advised to organize seminars to examine appropriate ways to respond to the Convention’s mandate in Article 7(1) to interpret the Convention with regard "to its international character and to the need to promote uniformity in its application".

III. Damage Prevention and Control through Regard for Interpretations in other Jurisdictions

We will turn now to a way to maximize uniformity that is familiar to all who work with our domestic uniform laws -- regard for case law in other States -- an approach that has played an important part in producing a workable degree of legal harmony in applying our uniform state laws. Recourse to international case law will also aid uniformity in applying the Sales Convention. Indeed, national reports to the 1986 International Congress of Comparative Law showed that this recourse has been employed in many countries without statutory encouragement.[9] In view of the mandate in Article 7(1) for interpretation with regard to the Convention's "international character" and "the need to promote uniformity in its application,[10] courts in States that adopt the Sales Convention should have no doubt as to their responsibility to consider interpretations in other countries.

IV. Conclusion

To sum up: We cannot expect perfect uniformity in applying the convention [page211] -- or, for that matter, any other statute. But we can look forward to international commercial law that is more helpful and predictable than the present Babel of competing systems. In addition, international acceptance of the same rules gives us a common medium for communication -- a lingua franca -- for the international exchange of experience and ideas. It is not too much to expect that this dialogue will contribute to a more cosmopolitan and enlightened approach to law.[page 212]

* Schnader Professor of Commercial Law Emeritus, University of Pennsylvania.

1. See Honnold, The Sales Convention: Background, Status, Application, 8 J.L. & Com. 1 (1988).

2. Id., see also J. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention (68-70, 217-18, 238-39 [hereinafter cited as Honnold Commentary] (1982).

3. Professor Peter Winship has done a great service for all who work in this field by his series of bibliographies of writings on the Sales Convention; the latest of which is readily accessible at 21 Int'l Law. 585-601 (1987). Each year the UNCITRAL Secretariat issues a bibliography of international writings on the various fields of the Commission's work. E.g., U.N. Doc. A/CN.9/284 (1986). These bibliographies, together with studies, legislative texts, and reports on proceedings are reproduced in the UNCITRAL Yearbook. See, e.g., 14 United Nations Commission on International Trade Law Yearbook 276-278 (1983) (United Nations, New York, 1986, Doc.A/CN.9/Ser. A/1983, U.N. Pub. Sales No.: E. 8.85.V.3). (The Yearbook, like other U.N. publications, is issued in various language versions; in the above citation, "E" stands for the English version.)

4. The present writer had the responsibility for developing the study plan for the fifteen national reporters and for preparing the General Report: Honnold, J., Methodology to Achieve Uniformity in Applying International Agreements, Examined in the Setting of the Uniform Law for International Sales under the 1980 U.N. Convention. (Publication pending for the Conference Hosts -- the Universities of Sydney and Melbourne.) On the use of foreign and domestic scholarly writing in interpreting international agreements see Part IV A(2) of the above General Report.

5. A general introduction and guide to this legislative history can be found at Honnold Commentary, supra note 2, at 75-81 (detailed references for the Yearbooks and the Official Records of the Vienna Conference appear at 77-80). Tracing the legislative background for the Convention's provisions is complicated by the fact that, as is common in legislative preparation, article-numbers kept changing as the drafts developed. To cope with this and other "tracing" problems the present writer has compiled a Documentary History of the Sales Convention (publication pending).

6. See the General Report, supra note 4, at Part IV B. The civil law world and the United States make free use of legislative history even for domestic enactments. Jurisdictions that have followed English restrictions against this material may now be expected to relax as a result of a 1980 decision of the House of Lords on the approach to interpreting international conventions. Fothergill v. Monarch Airlines, [1980] 2 All E.R. 696 (construing the Warsaw Convention). Rejection of narrow domestic rules is also encouraged by Article 7(1) of the Convention which calls for interpretation with regard "to its international character and to the need to promote uniformity in its application . . . ." See Honnold Commentary, supra note 2, at 114-20.

7. R. Hillman, J. McDonnell & S. Nickles, Common Law and Equity under the Uniform Commercial Code (1985).

8. Friendly, In Praise of Erie -- and of The New Federal Common Law, 39 N.Y.U. L. Rev. 385 (1964); Honnold Commentary, supra note 2, at 125-33.

9. See the General Report, supra note 4, at Part IV A(1).

10. UNCITRAL at its next session will discuss appropriate means for gathering and disseminating international case law (jurisprudence) -- and also scholarly writing (doctrine) that in many jurisdictions has authority that is as great (or greater than) judicial decisions.