WLDoc 10-10-27 7 - 0 (PM)

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\li0 \f12 \fs24 {
\b International}
{
\b &}
{
\b Comparative}
{
\b Law}
{
\b Quarterly}
\par\sa0\sb0\ql \cbpat0 \fi0 \qc \sa80 \sb80 \li0 \ri0 \sl240\slmult1

\f12 \fs20 2001
\f12 \fs24 {
\b Insularity}
{
\b or}
{
\b leadership?}
{
\b The}
{
\b role}
{
\b of}
{
\b the}
{
\b United}
{
\b Kingdom}
{
\b in}
{
\b the}
{
\b harmonisation}
\li0 {
\b of}
{
\b commercial}
{
\b law}

\f12 \fs20 Roy Goode
\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1
\f12 \fs20 {
\b Subject:}
Commercial law
\f12 \fs20 {
\b Keywords:}
Commercial law; Harmonisation
\par\sa0\sb0\ql \cbpat0 \li0 \par
\cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1
\f12 \fs22 {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
751}
{
\b I.}
{
\b INTRODUCTION}

\f12 \fs20 THE last few decades have seen a substantial growth in what has become
known as transnational \li0 commercial law, by which I mean that body of commercial
law principles and rules, from whatever \li0 source, which is common to a number of
legal systems. The various types of harmonisation fall \li0 broadly into four
groups, each possessing its own implementing agency:
\f12 \fs20 \bullet Legislation--the task of governments and legislatures
\f12 \fs20 \bullet Judicial parallelism and judicial co-operation--the task of
judges
\f12 \fs20 \bullet Business practices, codes and model forms, including
contractually incorporated uniform rules \li0 published by international bodies--
the task of the international business community and its national \li0 and
international organisations
\f12 \fs20 \bullet International restatements--the task of scholars.
\f12 \fs20 In the limited space available I shall address only the first and last
of these and confine myself to \li0 private, transactional law. I am not concerned
here, except at the margins, with public law regulating \li0 transactions or
institutions. My focus is the contribution to the development of transnational \li0
commercial law by United Kingdom judges, practising lawyers, businessmen and legal
scholars. My \li0 thesis is that we make a major input into the fashioning of
international instruments of different kinds \li0 but all too often walk away from
the finished product, so that if we adopt the instrument at all we come \li0 in
very much later than our major competitors and lose the opportunity to give
leadership to the \li0 international community and to gain the influence which that
leadership would bring in its train. After \li0 explaining why I regard
transnational commercial law as important in an era of globalisation I shall \li0
attempt to analyse the reasons for our failure to become more international in our
approach to a legal \li0 regime for cross-border transactions, the consequences of
that failure and various ways in which we \li0 might restore the vision and
influence which at the beginning of the century led to the adoption of UK \li0
commercial law statutes almost verbatim throughout the common law world.
\f12 \fs22 {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
752}
{
\b II.}
{
\b HARMONISATION}
{
\b THROUGH}
{
\b LEGISLATION}

\f12 \fs20 Harmonisation through legislation has two aspects. The first is the
implementation of international \li0 instruments: the ratification of international
conventions and the adoption, wholly or in part, of model \li0 laws. The second is
the enactment of legislation which is domestic in character but which may \li0
nevertheless exert a two-way influence on transnational commercial law, because it
draws on the \li0 laws of other countries and/or because it is itself used as a
model or source of ideas by foreign \li0 governments and legislatures. This second
aspect, which may be termed legislative parallelism, is \li0 often overlooked in
discussions of transnational commercial law. It is, however, highly significant
both \li0 for the improvement of our own law and for the exportability of our law
to other countries, particular \li0 developing countries and those that have moved
or are in transition from a planned economy to a \li0 market economy, thereby
extending the influence of the common law in general and English law in \li0
particular.
\f12 \fs22 {
\b \i A.}
{
\b \i International}
{
\b \i Conventions}
\par\sa0\sb0\ql \cbpat0 \li0 \par

\cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1
\f12 \fs22 {
\b 1.}
{
\b WHY}
{
\b INTERNATIONAL}
{
\b COMMERCIAL}
{
\b LAW}
{
\b CONVENTIONS}
{
\b ARE}
{
\b IMPORTANT}
\cbpat0 \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1

\li0 \f12 \fs20 Those engaged in international commerce have become increasingly
aware of the need to ensure \li0 that national laws are adequately adapted to the
needs of global markets and cross-border \li0 transactions. The time has long
passed when domestic legislation shaped for internal trade can \li0 provide
sensible solutions to the problems of international commerce. Even within the field
of contract \li0 law, where parties to an international agreement should be, and
usually are, given a wide measure of \li0 freedom to make their own rules and
choose their own law, there may be substantial advantages in \li0 uniform law
within a restricted field. The parties are able to sing from the same hymn sheet,
to \li0 become familiar with the text, to read it in their own language, and to
reduce their dependency on \li0 local experts in every jurisdiction in which they
transact business. Moreover, uniform rules provide a \li0 neutral legal regime for
the many cases where the parties do not select the applicable law and, \li0 indeed,
conclude their agreement informally--for example, on the telephone--and settle only
the most \li0 essential terms. The success of the carriage of goods conventions
provides a striking illustration of \li0 the advantages of uniform rules in cross-
border commerce. So too does the Convention on Contracts \li0 for the International
Sale of Goods.
\f12 \fs20 In any event, the progressive move towards the globalisation of commerce
and finance has resulted \li0 in a much greater awareness of the need to go beyond
contractual relationships and to harmonise at \li0 least some of the rules relating
to the acquisition and transfer of rights {
\i in}
{
\i rem}
in movable commercial \li0 assets, tangible or intangible, in order to enhance the
security of transactions. Let us consider the \li0 following:
\f12 \fs20 {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
753}
\bullet Cross-border dealings in receivables, which may themselves be
international in \li0 character
\f12 \fs20 \bullet The need for an adequate security regime to protect the
financing of mobile equipment of high unit \li0 value
\f12 \fs20 \bullet The legal efficacy of cross-border settlement and payment
system rules
\f12 \fs20 \bullet The creation and protection of ownership and security interests
in pools of indirectly held investment \li0 securities which may involve an issuer
and tiers of securities intermediaries, all in different countries
\f12 \fs20 \bullet The implications, yet to be worked out, of cross-border
electronic commerce
\f12 \fs20 \bullet The growth of cross-border insolvency of multinational groups
of enterprises.
\f12 \fs20 These are matters which, in the light of the magnitude of the interests
at stake, can no longer be left \li0 exclusively to individual national laws,
though these will always retain a prominent role except, in the \li0 case of the
European Union, where the field is occupied by European Community law. So the \li0
importance of harmonising at least some rules of substantive law by international
convention should \li0 not be under-estimated. We are not here talking of a mere
academic desire for a greater convergence \li0 of legal systems; we are talking of
matters which industry, commerce and banking regard as of \li0 immense importance
to them.
\f12 \fs20 Two illustrations will serve to underline this point. At a seminar in
London to discuss a uniform conflict \li0 of laws rule to govern dealings in
indirectly held investment securities we were told by a \li0 representative from
one participant that systemic risk was a constant topic of discussion, there had
\li0 been a drastic increase in the use of collateral and the figures were in
billions of dollars. The industry \li0 urgently needed a conflicts rule which
adopted the place of the relevant intermediary approach \li0 (PRIMA). Moves are now
under way both for a new European Directive and for a Hague Conference \li0 private
international law convention on the subject. Happily, as I shall mention, the UK is
playing a \li0 leading role in both of these initiatives, through the intensive
efforts of two practitioners, Richard \li0 Potok (the driving force behind the
project) and Guy Morton, and led on the government side by the \li0 Treasury.
\f12 \fs20 My second example relates to certain types of mobile equipment of high
unit value, notably aircraft, \li0 railway rolling stock and space property. The
financing of such equipment involves huge outlays. It is \li0 estimated that over
the next 10 years more than 1,000 commercial satellites will be launched valued
\li0 at $US 5 billion and that over the next 20 years expenditure on the financing
of new aircraft alone will \li0 exceed $US 1 trillion. So security over the
financed object is of crucial importance to the financier. But \li0 how do we
protect security interests in objects that move daily from one country to another
or, in the \li0 case of satellites, are not on earth at all? How do we ensure that
an interest created under one legal \li0 regime will be recognised and enforced in
others? The ambitious project initiated by UNIDROIT is the \li0 creation of an {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
754}
entirely new type of interest in such mobile equipment, an international
\cbpat0 \cbpat0 \li0 \ri0 \qj \f12 \fs20 security or title-retention interest which
will be able to be created with very simple formalities, will \li0 confer on the
secured party a range of essential default remedies and will be perfected by entry
in an \li0 international register, having priority over unregistered and
subsequently registered interests in \li0 accordance with a short and simple set of
priority rules. A study conducted under the auspices of \li0 INSEAD suggests that
in relation to aircraft financing international acceptance of a legal regime of
this \li0 kind, by increasing the security of aircraft receivables, could
significantly raise their credit rating and \li0 reduce borrowing costs by as much
several billion US dollars a year.{\field {\*\fldinst HYPERLINK \\l "fn1"}
{\fldrslt\ul\cf2 \cf13
\fs12 {
\ul \fs20 \super \cf13
1}
}} \f12 \fs20 This important Convention, \li0 which in relation to aircraft is
being co-sponsored by UNIDROIT and the International Civil Aviation \li0
Organization, is expected to be concluded at a Diplomatic Conference to be held in
Cape Town at the \li0 end of October 2001.
\f12 \fs22 {
\b 2.}
{
\b THE}
{
\b NEED}
{
\b FOR}
{
\b LIMITED}
{
\b OBJECTIVES}

\f12 \fs20 Just as no one--at least, no one of sound mind--enters the academic
world because of the pay, so \li0 also no one who has experience of the time, hard
work and sheer frustration involved in the \li0 preparation of instruments of
harmonisation embarks lightly on a uniform law project. I am not one of \li0 those
who believes that harmonisation is {
\i per}
{
\i se}
a good thing. Even if it were feasible (which plainly it \li0 is not) to harmonise
all private law, whether at the international level or at the regional level--
for \li0 example, within the European Community--I do not think it would be
sensible to do so. In the \li0 European context Lord Goff has recently observed:
\f12 \fs20 We have today in Europe a whole range of legal cultures \uc1\u8230\'6D
We should be profoundly grateful for this \li0 diversity. We can learn far more
from these diverse systems than we could have ever have derived \li0 from a single
monolithic regime.{\field {\*\fldinst HYPERLINK \\l "fn2"}{\fldrslt\ul\cf2 \cf13
\fs12 {
2}
}}
\f12 \fs20 In his slim but classic work {
\i Comparative}
{
\i Law,}
that distinguished Cambridge scholar Professor Harold \li0 Gutteridge warned of
the damages of over-ambition in the face of fierce loyalties to domestic law:
\f12 \fs20 The citizens of many countries are deeply attached to their national
law; at one extreme we have, for \li0 instance, the Frenchman who carries in his
pocket the {
\i Code}
{
\i Civil,}
the dog-eared leaves of which bear \li0 testimony to the frequency with which it
is consulted, and, at the other end of the line, the Englishman \li0 who never
looks at a law book but is nevertheless convinced that his common law is the
quintessence \li0 of human wisdom and justice.{\field {\*\fldinst HYPERLINK \\l
"fn3"}{\fldrslt\ul\cf2 \cf13
\fs12 {
3}
}}
\f12 \fs20 {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
755}
Yet Gutteridge remained firmly committed to the process of harmonisation. The
point \li0 he was making was that it is necessary to be selective and to keep any
harmonising project within \li0 manageable limits. During the last 25 years
international organisations involved in the harmonisation \li0 of private law and
private international law have become keenly aware of the need to proceed with \li0
circumspection, and in particular, not to embark on a project of harmonisation
before satisfying \li0 themselves that the differences in national laws create a
serious impediment to cross-border trade; to \li0 limit the scope of the project to
what is both necessary and acceptable to States with widely differing \li0 legal
philosophies; and to involve the relevant interest sectors not merely through
consultation on a \li0 finished product but in the creation of the product itself.
\f12 \fs22 {
\b 3.}
{
\b THE}
{
\b APPROACH}
{
\b OF}
{
\b THE}
{
\b UNITED}
{
\b KINGDOM}
{
\b TO}
{
\b THE}
{
\b HARMONISATION}
{
\b OF}
\li0 {
\b COMMERCIAL}
{
\b LAW}

\f12 \fs20 Writing in 1949 Gutteridge observed that Great Britain's reputation for
obstructing uniform law from \li0 selfish motives was undeserved and that with
limited exceptions the movement for unification owed \li0 much to British
initiative and collaboration. He instanced such unifying measures as the York-
Antwerp \li0 Rules of General Average, the various Brussels Conventions on Maritime
Law, the 1921 Hague Rules \li0 on the Liability of Shipowners and the Foreign
Judgments (Reciprocal Enforcement) Act 1933.
\f12 \fs20 It remains the case that the United Kingdom makes a major contribution
to the production of \li0 international instruments of various kinds. Our academic
and practising lawyers and lawyers and \li0 others in the civil service participate
prominently as chairpersons or members of study groups, \li0 working parties and as
rapporteurs; our government departments make an important input through \li0 the
submission of papers, the organisation of seminars and conferences, and
participation as \li0 members of UK delegations to diplomatic conferences; our
national trade organisations contribute \li0 submissions through the international
bodies of which they are members. And the UK is highly \li0 regarded for its
commitment to support of the world's leading general harmonisation institutions,
\li0 notably UNIDROIT, UNCITRAL, the Hague Conference and the International Chamber
of Commerce. \li0 But in the field of transnational commercial law our record of
implementation has so far been rather \cbpat0 \cbpat0 \li0 \ri0 \qj \f12 \fs20
dismal.
\f12 \fs20 One could give a number of illustrations. The most striking is the
inertia in regard to the 1980 UN \li0 Convention on Contracts for the International
Sale of Goods (CISG). This is a major gap-filling \li0 convention consisting of
some 101 Articles and dealing with the contractual (but not the property) \li0
aspects of sale. A number of its rules are undoubtedly better than those found in
our own Sale of \li0 Goods Act, for example, the rule that risk passes with control
(i.e. the delivery of actual or \li0 constructive possession) rather than with
ownership, which is the rule in the Sale of Goods Act and \li0 which our courts in
practice avoid by inferring a contrary intention on the part of the parties. Now
the \li0 Convention {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
756}
offers no threat whatsoever to party autonomy. It is essentially a gap-filler
\li0 designed to make provision where, as is not at all uncommon in international
trade, the parties have \li0 failed to do so because their contract has been
concluded informally on the telephone or on the basis \li0 of a brief description
of the essential terms. The parties are free to exclude the convention almost in
\li0 its entirety or to exclude or vary particular provisions, either directly or
by selecting the domestic law \li0 of a particular country to govern their
contract. The Convention has been ratified by no fewer than 57 \li0 States. They
include virtually all our major competitors except Japan and India, the latter
awaiting \li0 ratification by the UK. Government is not opposed to ratification of
the convention; it is simply that it \li0 has not been found possible to provide
legislative time. Now it is undoubtedly true that the volume \li0 and complexity of
modern legislation are vastly greater than they were in Gutteridge's time. Even so,
\li0 one has to say that the excuse of lack of parliamentary time begins to wear a
little thin after 20 years!
\f12 \fs20 Even where we do ratify a convention we can take an unconscionably long
time to do it. One of the \li0 most successful international conventions of all
time is the 1958 New York Convention on the \li0 Enforcement of Arbitral Awards,
which 123 States have now adopted and which has made a huge \li0 contribution to
the growth of international commercial arbitration. Now you might think that as one
of \li0 the world's leading arbitration centres the United Kingdom would have been
one of the first to ratify \li0 the New York Convention. In fact it took us no less
than 17 years. Far from being the first we were \li0 48th in line, coming in
several years after most of our major competitors, including, this time, India.
\li0 Happily we were not the last. Malta ratified the convention in September 2000,
some 43 years after \li0 the event. So it's never too late to repent!
\f12 \fs20 When we make such a major contribution to the fashioning of an
international instrument, is it not \li0 sensible to adopt it and to give our
courts the same opportunity as is eagerly seized by their \li0 counterparts from
overseas to offer their own interpretative guidance which will then be available to
\li0 courts and jurists in other jurisdictions? Would not this also have the effect
of increasing still further \li0 the influence of English law and English courts?
\f12 \fs22 {
\b 4.}
{
\b SOME}
{
\b REASONS}
{
\b FOR}
{
\b NON-IMPLEMENTATION}
{
\b OF}
{
\b INTERNATIONAL}
\li0 {
\b INSTRUMENTS}

\f12 \fs20 Why does the UK find it so difficult to give leadership in the adoption
of international instruments? \li0 Leaving aside sheer bloody-mindedness--as where
the UK alone refused to sign the European \li0 Insolvency Proceedings Convention
because of the row over BSE in British beef--the reasons appear \li0 to be a
combination of policy considerations and perceived practical difficulties.
\f12 \fs20 As regards policy, there are those who consider that English law in all
its majesty is greatly superior to \li0 anything that could be devised at
international level. For lawyers in this category the Sale of Goods \li0 Act is the
quintessence of perfection, and the notion that we might benefit from CISG in any
way at all \li0 is anathema. The fact is that our commercial law did once influence
the {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
757}
whole of the \li0 common law world but our neglect to service it has cost us
dear, as one common law country after \li0 another has abandoned the old UK
legislation in favour of new enactments tailored to the needs of \li0 modern
commerce. Allied to this notion of the superiority of English law is the implicit
assumption that \li0 in an international contract it is English law that will be
the governing law. But for every contract \li0 governed by English law there will
be others governed by a foreign law in a contract of which the \li0 language or
primary knowledge will not necessarily be English and which may be much less \li0
favourable to the English party than the rules of an international convention. Is
there not merit in at \li0 least allowing UK parties to avail themselves, if they
so wish, of rules designed specifically for \li0 international transactions and
available in English language texts?
\f12 \fs20 A further factor in the past has been the lack of industry pressure. It
is naive to believe that the only \li0 relevant factor is the quality of the
measure proposed. Faced with a crowded legislative timetable no \li0 government is
likely to find time for a measure for which there is no pressure from at least
one \li0 powerful interest group. Nowadays we recognise that it is crucial to
secure the vigorous support of the \cbpat0 \cbpat0 \li0 \ri0 \qj \f12 \fs20
relevant interest groups so that they in turn can put pressure on government and
persuade Ministers \li0 that there really is a serious problem which the new
measure will properly address. This involves \li0 raising the general level of
interest and awareness. The Department of Trade and Industry's Business \li0 Law
Unit here deserves an accolade for its hosting of several seminars to discuss the
Leasing and \li0 Factoring Conventions and successive drafts of the UNIDROIT Mobile
Equipment Convention.
\f12 \fs20 Then there is the familiar problem of lack of parliamentary time, a
problem that affects most, if not all, \li0 legislatures around the world. This
affects our ability to implement domestic legislation as well as \li0 international
conventions and I shall examine it in more detail in that context. Suffice it to
say at this \li0 stage that the enactment of legislation as a prelude to
ratification of an international instrument{\field {\*\fldinst HYPERLINK \\l "fn4"}
\fs12 {
4}
}} \f12 \fs20 can \li0 usually be expected to consume a quite short amount of time.
The normal practice is to annex the text \li0 of the convention as a schedule to
the Bill. No line-by-line analysis is involved, because apart from \li0
reservations permitted by the convention (which in modern conventions are usually
the only \li0 reservations allowed) it cannot be changed; it must be enacted as it
stands or not at all. This makes \li0 the inability to find time for the Vienna
Sales Convention all the more mystifying.
\f12 \fs20 {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
758}
But perhaps the most potent factor of all is that apart from the valiant work of
the Law \li0 Commission we have long ago ceased to take an interest in servicing
even our own general law. The \li0 Victorians had the foresight to expend large
amounts of time, energy and money in providing an \li0 infrastructure that would
last 100 years. We do not have this vision. Our commercial legislation, like \li0
our water pipes, our railways and our underground, suffers from underinvestment and
patchwork \li0 adjustments which in the end cost more than if we had done a proper
job. It is therefore scarcely \li0 surprising that we are so inert when it comes to
adopting international instruments. This is, I believe, a \li0 matter of the utmost
gravity, and I shall say more about it when I come to discuss ideas for a UK \li0
commercial code.
\f12 \fs22 {
\b \i B.}
{
\b \i Model}
{
\b \i Laws}

\f12 \fs20 Just a brief word about model laws--instruments that will not in
themselves acquire legal force at \li0 international level but are available to be
adopted by States if and to the extent that they desire to do \li0 so. A good
example in the field of commercial law is the UNCITRAL Model Law on
International \li0 Commercial Arbitration. The initial response to this from the
DTI Advisory Committee on Arbitration \li0 Law (DAC) in its 1989 Report was
decidedly lukewarm. A new Arbitration Act was certainly needed. \li0 No doubt the
Model Law provisions should be adopted where possible; but while the Model Law
was \li0 good enough for countries whose arbitration law was relatively
undeveloped--which included \li0 Scotland--it did not appear to have a great deal
to offer the English. In those early days we were still \li0 wedded to concepts
that had long been discarded in continental Europe: the dependence of the \li0
arbitration clause on the validity of the underlying agreement; the application of
English rules of \li0 evidence and English conflict of laws rules in an English
arbitration; and, of course, the vital \li0 importance of judicial review of
arbitral awards. But by the time the DAC came to issue its final \li0 consultation
paper six years later its views had undergone something of a sea-change. On the
\li0 majority of issues where English law had been felt superior to the Model Law,
it now fell into line. The \li0 resulting Arbitration Act 1996, drafted with
admirable clarity and precision by Mr. Geoffrey Sellers, \li0 does, indeed, embody
much of the philosophy of the Model Law.
\f12 \fs20 But what is particularly significant about the Arbitration Act is that,
lacking government interest, it \li0 started as a purely private enterprise in
which one of our leading arbitrators, Mr. Arthur Marriott, \li0 persuaded private
organisations and individuals to contribute funds for the preparation of an
unofficial \li0 Bill, which was in due course produced. Eventually the DTI agreed
to take over the Bill and the result \li0 was the excellent product we have today.
But we might not have had it at all if there had been no \li0 private initiative.
Is this the way to carry our commercial law forward? Perhaps it is!
\f12 \fs22 {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
759}
{
\b \i C.}
{
\b \i Legislative}
{
\b \i Parallelism}

\f12 \fs20 As I have previously explained, even domestic legislation has the
potential to contribute to the \li0 harmonisation of commercial law, by a process
of borrowing and lending. A proper reform of our \li0 commercial law requires a
careful study of developments in other jurisdictions, both civil law and \li0
common law, though naturally in the field of commercial law America has pride of
place. Where we \li0 borrow concepts from others we contribute to the harmonisation
process, even if only at the level of \li0 ideas and concepts rather than detail.
By the same token, if we frame a commercial law statute which \li0 is responsive to
the needs of modern commerce, including cross-border commerce, then we have an \li0
exportable product which will help to spread the influence of English law and
resort by foreign lawyers \cbpat0 \cbpat0 \li0 \ri0 \qj \f12 \fs20 to English
academic and practising lawyers.
\f12 \fs20 The sad fact is that we no longer take seriously the review and reform
of our commercial law; minor \li0 tinkering is all we seem able to achieve. Almost
every statute governing commercial transactions is in \li0 substance, and in most
cases in form, well over a century old. Instances are the Bills of Sale Acts \li0
1878-1891, the Bills of Exchange Act 1882, the Factors Act 1889, and the Sale of
Goods Act, which \li0 though dated 1979 is not substantially changed from the Sale
of Goods Act 1893. So we find \li0 ourselves in the twenty-first century with
legislation enacted in the nineteenth--a shocking indictment \li0 of our approach
to the modernisation of our law.
\f12 \fs20 In the field of commercial law we seem to be particularly resistant to
legislative change except at the \li0 margins. Successive governments have largely
opted out of the field, leaving it to the courts to fill the \li0 vacuum. Our
judges do a splendid job, but even though we now recognise that judges do not
merely \li0 declare law, they also create it, there is a clear limit to what can be
achieved through the common \li0 law, particularly where it is encumbered by
archaic statutes. Our law of personal property security \li0 remains rooted in 19th
century concepts and legislation despite the fact that no fewer than three \li0
official reports--the Crowther Report on Consumer Credit in 1971, the Cork
Insolvency Law Review in \li0 1982 and the Diamond Report on Security Interests in
Property 1988--recommended the adoption of \li0 a functional approach to personal
property security law along the lines of Article 9 of the American \li0 Uniform
Commercial Code.
\f12 \fs20 Again, the review of company law, which was launched in 1998 as a
project designed to provide a \li0 strategic framework for a modern company law,
seems to have moved away from its stated purpose \li0 and to have focused on a
series of smaller and detailed changes which, though useful in themselves, \li0 do
not represent a fundamental review starting from first principles. Nevertheless the
Final Report, \li0 {
\i Modern}
{
\i Company}
{
\i Law,}
shows a welcome awareness of the wider issues arising from the review and \li0
includes a recommendation that the question of security interests in personal
property should be \li0 referred to the Law Commission for a deeper study. The
American experience over decades {
\b \i \cf17
*I.C.L.Q.}
\li0 {
\b \i \cf17
760}
is that by simplifying and modernising commercial law, costs can be significantly
reduced and \li0 business procedures streamlined.
\f12 \fs20 There are other, equally pressing, concerns. A leading international
financial lawyer, Mr. Hugh Pigott, \li0 in an article focusing attention on a
marked increase in the cross-border use of securities as \li0 collateral, has noted
the lack of legal certainty in identifying which laws apply to which parts of a
\li0 transaction.
\f12 \fs20 This lack of legal certainty is compounded by the fact that the laws of
the Member States of the \li0 European Union relating to the use of collateral are
in many cases complex, inconsistent and \li0 impractical. The resulting
uncertainties seriously impede the efficient use of collateral. This in turn \li0
restricts access to financial services and raises costs.{\field {\*\fldinst
HYPERLINK \\l "fn5"}{\fldrslt\ul\cf2 \cf13
\fs12 {
5}
}}
\f12 \fs20 In March of this year the Collateral Law Reform Group of the
International Swaps and Derivatives \li0 Association published a report identifying
the main legal impediments to the efficient use of collateral \li0 and urging, not
an international convention, but a reform of national laws so as to embody certain
key \li0 principles that would result in practical harmonisation across Europe--in
other words, convergence \li0 through legislative parallelism. This is a warning
call we simply cannot afford to ignore.
\f12 \fs20 The fault does not lie with the civil service, which, though labouring
under huge pressures \li0 exacerbated by years of diminution, neglect and
denigration, tries very hard to ensure that our law \li0 keeps abreast of
developments. But it is, perhaps excessively, constrained in its thinking by the
\li0 difficulties of securing a slot in the legislative timetable. In any event,
there are certain fields of law \li0 which are best reviewed outside government,
whether by a departmental committee or Royal \li0 Commission, the Law Commission or
some other expert group. Government departments are at their \li0 best in tackling
issues high in political content. But the review and reform of technical general
law are \li0 matters for outside specialists, working in extensive consultation
with the various interest sectors and, \li0 of course, with participation from them
and from the relevant government departments. Only the \li0 outsiders have the
knowledge, experience and time to undertake the work and to review \li0
developments in other countries and lessons to be learned from these.
\f12 \fs20 The fundamental problem is that our parliamentary machinery is wholly
inadequate for the needs of \li0 modern commerce. It is this fact above all that
has inhibited a more broad-brush approach by \li0 government and the Law
Commissions. The concerns I have expressed are echoed, in the field of \li0 company
law, in a thoughtful and imaginative report by the Law Society's Company Law
Committee, \cbpat0 \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1
\li0 \f12 \fs20 {
\i The}
{
\i Reform}
{
\i of}
{
\i Company}
{
\i Law,}
published in February 2000 and endorsed by the Law Reform \li0 Committee of the
Bar Council. That report repeated criticisms expressed by the committee nine \li0 {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
761}
years previously that company law reform was failing because of inadequate
resource, \li0 inadequate consultation, lack of political commitment to make
Parliamentary time available and a \li0 Parliamentary process which was no longer
delivering sound technical legislation, so that \li0 recommendations in reports of
the highest quality from bodies such as the Law Commission \li0 remained
unimplemented. It also stressed the need for regular review of the state of company
law, \li0 saying that 38 years (the period since the Jenkins Report) was too long,
particularly when change in \li0 the business sector is more rapid than was
previously the case. Every word of this excellent report is \li0 equally true of
commercial law; and if 38 years is too long to wait for a new review, what are we
to say \li0 of our commercial law, which has not been the subject of review for
over a century?
\f12 \fs20 The only reason our commercial law continues to enjoy regard, both here
and abroad, is because of \li0 the quality of our judges, their sensitivity to
legitimate commercial needs and their receptiveness to \li0 new legal instruments
and concepts fashioned to serve those needs. As an American professor once \li0
remarked to Lord Wilberforce:
\f12 \fs20 The elegance, style and analytical powers of the British legal community
have survived the decline of \li0 the British Empire intact.
\f12 \fs20 The combination of well-informed judges and generations of textbook
writers has masked the \li0 fragmentation, obscurity and inaccessibility of our
commercial law. These deficiencies are not always \li0 evident to judges, for by
the time they come to hear a difficult case a great deal of work will have been
\li0 done by counsel and solicitors for all parties, so that the facts are
winnowed, the relevant issues \li0 identified and sharply defined and the case
cogently presented. But the cost of the legal research \li0 involved in the
preparatory process and of taking complex issues of law through the hierarchy of
\li0 courts must run to tens of millions of pounds {
\i every}
{
\i year}
--and that is only the cost of the lawyers, not \li0 the value of the time of
their clients or the cost of impediments to legitimate business.
\f12 \fs20 Hence the proposal which I have ventured to put into play for a United
Kingdom commercial code. \li0 Now let me be clear about what is envisaged. It is
not the codification of our entire commercial law. In \li0 his lecture at the
British Academy in November 2000 the Lord Chancellor, Lord Irvine, observed that
\li0 no code can be entirely comprehensive.{\field {\*\fldinst HYPERLINK \\l "fn6"}
\fs12 {
6}
}} \f12 \fs20 I entirely agree. To seek to codify the whole of commercial \li0 law
would be a preposterous undertaking. It would not even be sensible to cover all the
main types of \li0 commercial contract. In fact, the code can literally be
restricted to a handful of topics where review \li0 and, if appropriate, reform are
really necessary. So I see no reason to include a treatment of \li0 negotiable
instruments other than those {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
762}
issued on a market as investment securities. \li0 The Bills of Exchange Act is
not perfect but nowadays creates few problems. For the same reason \li0 paper-based
payment systems do not need to feature in a commercial code, nor do documentary
\li0 credits or demand guarantees, which are perfectly well covered by contractual
incorporation of \li0 uniform rules published by the International Chamber of
Commerce. Again, there is no need to deal \li0 with marine or even nonmarine
insurance or with carriage of goods. In fact, the great bulk of the work \li0 of
our specialist Commercial Court can be readily handled within our existing law.
\f12 \fs20 What, then, does qualify for inclusion in a commercial code? First, a
few general principles relevant to \li0 commercial contracts, including electronic
commerce. Then, the sale of goods, which is the central \li0 commercial contract.
Sir Mackenzie Chalmers' Sale of Goods Act was a brilliant codification but now \li0
needs updating. After all, what was enacted in the nineteenth century is scarcely
likely to be adequate \li0 for the twenty-first Professor Hugh Beale, a Law
Commissioner, has identified in a very preliminary \li0 study at least 28 matters
which call for reconsideration. I have already referred to the state of our \li0
personal property security law, which is a disgrace. We urgently need a modern law
covering dealings \li0 in investment securities, including marketresponsive rules
governing indirectly held securities and \li0 their use as collateral, along the
lines of Article 8 of the Uniform Commercial Code, and a statement \li0 of the
principles and rules governing electronic funds transfers, which involve the
turnover of vast \li0 sums every night. Finally, there is much to be said for a
restatement of the law relating to suretyship \li0 guarantees, which even if
generally satisfactory is hard to access.
\f12 \fs20 A code has several advantages over ordinary legislation. It gathers
together in one place the main \li0 principles and rules in the selected field. It
is prepared by or in collaboration with experts in that field, \li0 who, free from
the pressures imposed on parliamentary draftsmen in the preparation of ordinary
\li0 legislation, can take the time to consult practitioners in the field, to
examine developments in other \li0 jurisdictions and to produce a structured text
in plain English and logical sequence. An excellent \li0 modern example is the
Arbitration Act 1996, where parliamentary draftsmen worked in close \cbpat0 \cbpat0
\li0 \ri0 \qj \f12 \fs20 collaboration with the Chairman and members of the DAC to
produce a text which is widely admired \li0 for its clarity as well as its content.
The Act does not attempt to codify the whole of English arbitration \li0 law. It
focuses on those principles and rules which are central to arbitration, leaving
leeway for the \li0 courts to accommodate the Act to new developments. As Lord
Wilberforce pointed out many years \li0 ago when speaking to the Law Commissions
Bill, codification is not the enemy of the development of \li0 the common law but
rather its enhancer.
\f12 \fs20 \uc1\u8230\'6D by presenting to the courts legislation drafted in a
simple way by definitions and principles we may \li0 restore to the judges what
they may have lost for many years, to their great regret, the task of \li0
interpreting law according to statements of principle, rather than by painfully
hacking their way \li0 through the jungle of detailed and intricate legislation. So
I believe that a process of codification, \li0 intelligently {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
763}
carried out, will revive the spirit of the Common Law rather than militate \li0
against it.{\field {\*\fldinst HYPERLINK \\l "fn7"}{\fldrslt\ul\cf2 \cf13
\fs12 {
7}
}}
\f12 \fs20 Lord Wilberforce went on to describe the export value of a code:
\f12 \fs20 As our friends the French know very well indeed, and apply in practice,
legal institutions and legal \li0 ideas are a cement of great value in holding
together the exporting country and the other countries in \li0 pursuit of common
values.{\field {\*\fldinst HYPERLINK \\l "fn8"}{\fldrslt\ul\cf2 \cf13
\fs12 {
8}
}}
\f12 \fs20 In 2000 the Department of Trade and Industry kindly hosted a seminar to
test the response to the \li0 idea of a commercial code. Of the 60 people who
attended, including academic and practising \li0 lawyers, representatives of banks
and multinational companies, all who spoke strongly supported the \li0 code and not
one participant dissented. Moreover, there was a clear consensus in favour of \li0
legislation, not merely a kind of Highway Code, which it was thought would simply
add another layer \li0 of uncertainty. The Law Commission has indicated its
willingness, subject to the Lord Chancellor's \li0 approval, to examine two topics
in detail over a two-year period. It is hoped that the DTI will be the \li0
sponsoring department and provide the additional resources needed. It is envisaged
that the project \li0 will be in the nature of a public-private partnership in
which the professionals will play an active role. \li0 Professor Christian von Bar,
who is directing the European civil code project, has indicated that a UK \li0
commercial code could exercise considerable influence in the development of
commercial law in \li0 continental Europe. So it is doubly important for this
project to proceed.
\f12 \fs22 {
\b III.}
{
\b HARMONISATION}
{
\b THROUGH}
{
\b INTERNATIONAL}
{
\b RESTATEMENTS}

\f12 \fs20 This brings me to the last of my topics, harmonisation not through any
normative instrument but \li0 through \uc1\u8216\'6D restatements\uc1\u8217\'6D by
international groups of scholars. Two of these have attained particular \li0
prominence: the UNIDROIT Principles of International Commercial Contracts and the
Principles of \li0 European Contract Law produced by a private group, the
Commission on European Contract Law. \li0 These sets of principles are not, of
course, restatements, for since national laws differ from one to \li0 another they
necessarily change at least some of the rules in each of the legal systems
represented. \li0 The search was not for the lowest common denominator but rather
for best solutions to typical \li0 problems. The impact of the two sets of
Principles has exceeded the wildest expectations of their \li0 progenitors,
particularly in the field of international commercial arbitration. They demonstrate
the \li0 immense persuasive power of rules produced by groups of independent
scholars of international \li0 repute which are non-normative and therefore pose no
threat to national law but are available as a \li0 resource to courts, arbitral
tribunals and legislators. Even more striking is the fact that all the \li0
participants were satis {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
764}
fied that for the most part the Principles reflected rules already \li0 embodied
in their own legal systems.
\f12 \fs20 Plainly the Principles, which are the product of extensive debate on
policy issues, concepts and \li0 technical considerations, should feature
significantly in university student texts and contract courses. \li0 Unhappily in
England, at any rate, they do not. Most of our contract textbooks make no mention
of \li0 them at all. Nor, with a very limited number of exceptions, do the
Principles appear to feature in \li0 undergraduate or postgraduate courses. This is
a reflection of a wider problem, namely the \li0 inadequate, though gradually
increasing, attention to comparative law in our law schools. All this is a \li0
pity, because quite apart from exposing our students to ways of thinking that in
some respects are \li0 different from our own, discussion of other systems and
other rules helps us to see more clearly the \li0 characteristics of our own legal
system. Where we do find prominence and support given to the \li0 Principles of
European Contract Law is not in the student textbook but in an essay contributed by
the \li0 then Lord Chief Justice and current Senior Law Lord, Lord Bingham, in his
important contribution to \li0 the Clifford Chance Millennium Lectures.{\field
{\*\fldinst HYPERLINK \\l "fn9"}{\fldrslt\ul\cf2 \cf13
\fs12 {
9}
}}
\cbpat0 \cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1
\li0 \f12 \fs22 {
\b IV.}
{
\b THE}
{
\b WAY}
{
\b AHEAD}

\f12 \fs20 In the light of this rather lamentable state of affairs in our
commercial law, what is to be done? First, \li0 we need to become much more aware
of the benefits to be derived from implementation of \li0 international instruments
to the preparation of which we contribute so much. Secondly, we need to \li0 take
the servicing of our own commercial law much more seriously than we have until now,
\li0 recognising that a good modern code which focuses on those aspects of
commercial life crucial to the \li0 smooth functioning of business and markets can
not only produce better results but also save a huge \li0 expenditure of time and
money currently devoted to ascertaining the law and, in addition, provide us \li0
with a product which we can export to other countries. In this task the members of
the Commercial \li0 Bar Association, with their long expertise in handling
commercial disputes, can play an invaluable \li0 role.
\f12 \fs20 Thirdly, we in the law schools must engage the interest of our students
in international instruments \li0 relevant to their fields of study in domestic
law, so that they can see how there may be several ways \li0 of tackling a common
problem and can have a keener appreciation of the characteristics of their own \li0
law. There are welcome indications that this is now beginning to happen.
\f12 \fs20 Finally, there is an urgent need to review our parliamentary procedure
in order to find time to \li0 implement international commercial law instruments
with which we are in sympathy and to provide the \li0 framework of a modern
commercial law. One way is to reduce not only the volume but also the \li0
complexity of {
\b \i \cf17
*I.C.L.Q.}
{
\b \i \cf17
765}
modern legislation. Is it really necessary to add several hundred pages of \li0
text to our tax law every year? Should we be so preoccupied with trying to cover
every eventuality \li0 and stop up every loophole? And could we not have a
mechanism by which a Bill that is technical \li0 rather than political and has
secured a consensus within the sectors affected can be presented to \li0 Parliament
to approve the principles on which it is based and then amended as necessary and
\li0 brought into force by statutory instrument? This was one of the many useful
proposals advanced by \li0 the Law Society's Company Law Committee in the report to
which I have previously referred. Such a \li0 procedure would enable us to simplify
and modernise our commercial law and to make it accessible \li0 and exportable and
worthy of a country whose capital is the world's leading financial centre.
\f12 \fs20 This article is an updated version of a lecture given on 30 November
2000 (the COMBAR Lecture).
\f12 \fs20 Emeritus Professor of Law, University of Oxford.
\f12 \fs20 I.C.L.Q. 2001, 50(4), 751-765
\par\sa0\sb0\ql \cbpat0 {{\pict{\*\picprop\shplid1025{\sp{\sn shapeType}{\sv 1}}
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fn1}}\cbpat0 \li0 {\field {\*\fldinst HYPERLINK \\l "srcfn1"}{\fldrslt\ul\cf2 \cf13
\f12 \fs14 {
\ul \cf13
1}
}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {
\f12 \fs14 Anthony Saunders and Ingo Walter, {
\i Proposed}
{
\i UNIDROIT}
{
\i Convention}
{
\i on}
{
\i International}
{
\i Interests}
{
\i in}
{
\i Mobile}
{
\i Equipment}
{
\i as}
{
\i applicable}
{
\i to}
{
\i Aircraft}
{
\i Equipment}
{
\i through}
{
\i the}
{
\i Aircraft}
{
\i Equipment}
{
\i Protocol:}
{
\i Economic}
{
\i Impact}
{
\i Assessment}
(Sept. 1998) p. 32.
}
\par\sa0\sb0\ql {{\*\bkmkstart fn2}{\*\bkmkend fn2}}\cbpat0 \li0 {\field
{\*\fldinst HYPERLINK \\l "srcfn2"}{\fldrslt\ul\cf2 \cf13
\f12 \fs14 {
\ul \cf13
2}
}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {
\f12 \fs14 \uc1\u8216\'6D Coming Together--The Future\uc1\u8217\'6D in {
\i The}
{
\i Clifford}
{
\i Chance}
{
\i Millennium}
{
\i Lectures,}
B. S. Markesinis (ed) (Hart Publishing, 2000) at p. 239.
}
\f12 \fs14 {
\ul \cf13
3}
}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {
\f12 \fs14 {
\i Comparative}
{
\i Law}
(Cambridge University Press, 1949), pp. 157-8. It is not without interest that in
the index to the English edition of a leading French textbook on international
commercial arbitration the entry under \uc1\u8216\'6D {
\i Kompetenz-Kompetenz}
\uc1\u8217\'6D reads: \uc1\u8216\'6D see {
\i Competence-Competence}
\uc1\u8217\'6D .
}
\f12 \fs14 {
\ul \cf13
4}
}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {
\f12 \fs14 This article is concerned with private commercial law conventions which
are intended to confer rights and duties within the United Kingdom and thus have to
be carried into effect in the UK by legislation. Ratification is invariably
deferred until after such legislation in order to avoid the risk of the Bill not
being passed, resulting in the UK government being in breach of its international
obligations, and takes effect at the same time as the Act comes into force. There
are, of course, international treaties which are intended to take effect solely in
international law. These do not require legislation but UK constitutional practice
as crystallised by the 1924 Ponsonby Rule is to lay before both Houses of
Parliament for a period of 21 days after signature and before ratification every
treaty which is not intended to be enacted or dealt with under some alternative
parliamentary procedure.
}
\f12 \fs14 {
\ul \cf13
5}
}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {
\f12 \fs14 Hugh S. Pigott, \uc1\u8216\'6D Steps Towards the Harmonisation of
Collateral Law in Europe\uc1\u8217\'6D (2000) JIBFL 347.
}
\f12 \fs14 {
\ul \cf13
6}
}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {
\f12 \fs14 \uc1\u8216\'6D The Law: An Engine for Trade\uc1\u8217\'6D , a lecture
delivered at the British Academy on 22 Nov. 2000.
}
\f12 \fs14 {
\ul \cf13
7}
}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {
\f12 \fs14 HL Deb 1964-5, vol 264, cols 1175-6.
}
\f12 \fs14 {
\ul \cf13
8}
}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {
\f12 \fs14 Ibid.
}
\f12 \fs14 {
\ul \cf13
9}
}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {
\f12 \fs14 \uc1\u8216\'6D A New Common Law for Europe\uc1\u8217\'6D in {
\i The}
{
\i Clifford}
{
\i Chance}
{
\i Millennium}
{
\i Lectures,}
B. S. Markesinis (ed) 27.
}
\li0 \f12 \fs14 � 2010 Cambridge University Press
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