On the Net* and the liberation of information that “wants” to be free** - A call for action by the United Nations, Universities, researchers, and development agencies, with reference primarily to international trade law, Ralph Amissah

3 - Who might the possibility of free information interest, and why?

In this section we discuss examples of individuals and organisations that have interests other than commerce in publishing, what these interests may be, and why the Net should be of interest to them.

3.1 - Publications from centers of higher learning

It has been suggested by some that the Net is not suitable for higher learning, and a deeper understanding of the material contained on it. This argument focuses on the perceived use of hyper-media for jumping from item to item on the Net. Surfing is typically associated with the short attention spans of the user and can result in an unstructured digestion of information. Consider however, that anything that exists in book form can be presented in digital format, and hypermedia. Presentation is more flexible. Assuming the same quality of substance and presentation, surely, any perceived limitations fall back upon the individual user and her/his use or misuse of the potential that the Net provides.

Universities have already been mentioned as examples of producers of works that have reason to publish other than commerce. If it were thought of as a worthwhile goal, the Net could become a primary means of publication of scholarly articles, at the very least, of doctoral thesis. There are several possible ways of organising this. Researchers, or editors could place their final work on the Net and or submit a copy ready for publication by their Institute, the University, or university library or university publisher. The University could take control of publication insisting on submissions going through them, and selecting the works on which to place their name. Alternatively university libraries could collect publications by members of the university for dissemination via the Net. 21 A coalition of universities, or single university if of high enough repute, could take the initiative, and pull in contributions, by requesting the submission of published articles to them. The problem with the scenario envisaged, is that it does not take account of cost, assuming that this can be kept very low or covered by a reallocation of resources. Again problems may be encountered due to the fact that most publication is done through journals, which operate on a cost recovery basis, and occasionally subsidised basis. Research will have to be done as to whether distribution of such journals is much affected by their availability on the Net, and as to alternative solutions, such as their placement on the Net six months or a year after publication.

The Net infused with limitless information, with guidance as to what is relevant, identified by recognised authorities or tutors, would allow deeper research than has ever been possible before. It would allow equally for a broader understanding of subjects. A more serious problem is that of information management. With the possibility of unlimited information at ones fingertips, there is perhaps a greater need to determine which readings are of primary importance, and to develop the techniques to retrieve the information that is of particular interest.

Furthermore, it must be observed, despite our stated primary interest in writing that the Net is not limited to writing and offers other possibilities. Such as, the public offering of lectures, moots and audio-visual instructional material. Examples: (a) Universities could offer lectures by their leading authorities in a given field; (b) Large organs such as the World Trade Organisation and smaller units such as UNCITRAL would be able to host and disseminate a world-wide series of lectures via the Net, on subjects of particular importance to them, on which they wish to stimulate discussion, and achieve a common understanding. These lectures would always be available and callable on demand. Interactive long distance tutoring is another, though less efficient alternative. 22 This other dimension of the Net as a major communications channel, has implications of its own, and opens numerous other possibilities that are beyond the scope of this text. The Net, unlike previously existing broadcast media forms, allows unlimited specialisation and choice. The publisher is able to provide for a highly specialised audience, that looks for precisely what they need, and receives it when needed. It presents an opportunity for organisations recognised as authorities in a given area - such as the UN and institutions of higher learning to make a real impact.

3.2 - Private international trade law

In private international law, common texts that are arrived at seek to strike a fair balance between the rights and obligations of all parties. 23 They are rarely drafted in the interest of a specific party or lobby. This is because the transactions they regulate govern individual actors rather than States. Taking sale of goods law for example, every State will have buyers and sellers, both sides having an interest in the “fair” operation of the rules. 24

In international trade conflicts and divergences arising from the laws of different States are recognised as constituting an obstacle. 25 A number of organisations are actively engaged in attempting to reduce these conflicts and divergences. 26 In seeking to do so two basic techniques are employed, which are complimentary. The first is to provide greater certainty as to what law applies to a dispute, and as to which court/ arbitration tribunal has jurisdiction over a dispute. The second is to achieve the harmonisation in a given area of law, through achieving a common solution in all States. This may be regarded as the removal of conflicts in law by having the universally accepted regulation of a particular transaction and achieving a common solution in all States.

Of the former type the single most important example must be the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, (New York), to which there are over 100 contracting states, and which accounts for the importance and success of arbitration in international commercial disputes. It may be regarded as the pillar upon which subsequent developments in this area of law have been built. 27 In the area of applicable law belonging also to the former type, there is no equivalent of similar importance. The latter type covers the regulation of a multiplicity of transactions from sale of goods and agency to the carriage of goods. The Net has much to offer both types, but for our enquiry we must confine ourselves, and shall look at the most significant convention to date of the second type The United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG). 28 Sale of goods law may be regarded as the backbone of international trade, and this convention is currently applied by 46 countries which represent over two thirds of world trade. Much of what is suggested is applicable by analogy to other areas of law.

The objective of the CISG is to achieve a uniform international sales law through contracting States agreeing on a common sales law text, and courts and tribunals following the spirit of its interpretation clause on which much has been written. The provision (Article 7) instructs:

"(1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

(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 is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law."

Conventions increasingly provide in their interpretation clauses for the taking into account of their international character, and the need to promote uniformity in their application. 29 Professor John Honnold, a former Secretary of UNCITRAL, in his excellent (seminal) article, “Uniform Words, Uniform Application” points out that countries agreeing on a common text does not guarantee that the Convention will be applied uniformly by their courts and tribunals. In this article, using input from a team of professors from around the world gathered for the purpose, Professor Honnold examines the problems faced in achieving uniformity, and the methods by which it might be achieved. The problems discussed are diverse. Though the focus is on the CISG, much of what is discussed applies by analogy to other efforts in the private international law area. The article is essential reading to all interested in the harmonisation of private international law, and is an example of a writing that ought to be available on the Net. A positive trend was noted in the attitudes of States in applying conventions of an international character, taking greater account of the decisions and methods of other contracting States. A difficulty however, has been in knowing what has been written and decided elsewhere. In discussing solutions, Professor Honnold suggests the following: “General Access to Case-Law and Bibliographic Material: The development of a homogenous body of law under the Convention depends on channels for the collection and sharing of judicial decisions and bibliographic material so that experience in each country can be evaluated and followed or rejected in other jurisdictions.” 30 He then goes on to discuss “the need for an international clearing-house to collect and disseminate experience on the Convention” the need for which, he writes there is general agreement. He also discusses information-gathering methods through the use of national reporters. He poses the question “Will these channels be adequate? ...” 31 The Net, used properly, could provide for the hopes of Professor Honnold and his team of Professors - with all the requisite information available world-wide. 32 With the Net where a decision or scholarly writing already exists on a particular article or provision of a Convention, anywhere in the world, it will be readily available. Whether or not a national court or arbitration tribunal chooses to follow their example, they will be aware of it (and able to find out, as they are instructed to by the convention text to which they are contracting States). Whatever a national court decides will also become internationally known, and will add to the body of experience on the Convention. Nor is it particularly difficult to set into motion the placement of such information on the Net. With each interested participant publishing for their own interest, the Net could provide the key resources to be utilised in the harmonisation and reaching of common understandings of solutions and uniform application of legal texts. Works from all countries would be available.

Such a library would be of interest to the institution promulgating the text, governments, practitioners and researchers alike. It could place at your fingertips: (a) Convention texts. (b) Implementation details of contracting States. (c) The legislative history. (d) Cases generated by the Convention around the world - courts/ arbitration where possible. (e) The Official and other Commentaries. (f) Scholarly writings on the Convention. (g) Bibliographies of scholarly writings. (h) Textbooks. (i) Student study material collections. (j) Information on promotional activities, lectures - moots etc. (k) Discussion groups/ mailing groups and other more interactive features.

With the CISG this has already started to happen. UNCITRAL under Secretary Gerold Herrmann, has its own database through which it distributes its case law materials collected from national reporters (CLOUT). Comprehensive and informative bibliographies are available including those of Professor Claire M. Germain, of Cornell Law School Library, and Professor Peter Winship of SMU Law School. Two important efforts are underway which focus on the CISG: one at Pace University, Institute of International Commercial Law (IICL) - The CISG Database; the other at the University of Freiburg, Institute of Foreign and International Law - The Rabel Website. These have extensive materials and their own bibliographies on the CISG. At the IICL for example Professor Albert Kritzer, and Professor Michael Will of the University of Geneva, have collected the first 350 cases world-wide on the CISG. There is nothing comparable on traditional national or commercial databases. The model for distribution of information is not as yet clear.

3.3 - Public international trade law (assumptions and some development issues)

Public international trade law, which is of the world economy, is the realm of inter-state relationships and by its nature involves power relationships, making it a more sensitive area to discuss than private law. Nevertheless it is worth making the following points.

Modern economic theory relies heavily on the concept of the efficient market. Information is assumed to flow freely. Governments and individuals making important decisions are assumed to have access to more or less the same body of public information. To date this assumption has been false, and especially so for lower and middle income countries. These countries, apart from being the weaker party in negotiations, often do not have much background information on what they are negotiating. Information required is not readily available. Economic theory assumes that once information is public, it is known everywhere. By now this should be reminiscent of rhetoric of the Net.

Most lower and middle income countries recognise that for their development it is necessary to become better integrated with the world economy. This is one of the messages repeatedly delivered by developed nations and development agencies. Envisaged as necessary are internal legal reforms and restructuring to make markets more open and attractive to foreign investors; and also, becoming a better integrated part of the framework of international trade. Information is required to enable this to happen. This integration requirement relates both to the structures in place for public international law, and to rules and regulations applied within private international law.

Professors Joseph François, Chair of Development Economics, Erasmus University, and Bernard Hoekman of the World bank recognising the potential of the Net to help rectify this problem are working on a project to provide information in the fields of economics and international trade law.

3.4 - Development assistance to lower and middle income countries

It goes without saying that the development of a large repository of scholarly works on various subjects and other germane material would provide development assistance to lower and middle income countries - whether or not this is the motivating factor behind its occurrence. Already donor agencies are recognising the potential of the Net and the fact that linking governments and ministries, schools and universities to the Net can be much more cost effective than attempts to build libraries.

There are also domestic efforts under way, for example for law reporting to be done through the Net as a more cost effective and timely alternative to the traditional means of publication. The Zambian University Legal Information Institute (LII), in collaboration with the LII at Cornell University, now does its law reporting through the Net. The availability of law reports has also been cited as resulting in an improvement in the functioning of the legal system through judgements becoming more informed.

The connection between the Net and better integration into the international trading system through the enactment of appropriate legislation and development has already been made.

 21. Digital Libraries: The Future: The vision of computers powerful enough to organize and index huge treasure troves of scientific literature using intelligent functions such as “vocabulary switching”-classifying an article that mentions “Unix” under “operating systems” even if the words “operating systems” do not appear in the article-is finally coming to fruition, 32 years after it was first outlined in J.C.R. Licklider's “Libraries of the Future” (1965). Large-scale simulations on the HP Convex Exemplar supercomputer at the National Center for Supercomputer Applications have resulted in generating concept spaces for 10 million journal abstracts across 1,000 subject areas covering all engineering and science disciplines-the largest vocabulary switching computation ever achieved in information science. Future developments will require automatic indexing with scaleable semantics to coordinate searches among the one billion repositories likely in the next century. (Science 17 Jan 1997 p327) Edupage summary.

 22. Engineering, via African Virtual University: The African Virtual University, sponsored by the World Bank, is providing engineering students the opportunity to take courses in electrical engineering from a professor at the University of Massachusetts at Amherst. The professor's stateside course is videotaped and transmitted via satellite to participating institutions in Ethiopia, Ghana, Tanzania, Uganda and Zimbabwe. The professor is available by telephone three times a week to answer questions that the on-site instructor can't answer, or for which clarification is needed. Eventually, the African Virtual U. will be available in more than 40 countries on the African continent. (Chronicle of Higher Education 17 Jan 97 A24) Edupage summary.

 23. Even where drafted primarily by developed nations.

 24. Exceptions to which this generalisation does not apply, are to be found within such areas as intellectual property law, and carriage of goods (prior to the Hamburg rules).

 25. See e.g. the United Nations General Assembly Resolution 2102 (XX).

 26. Oragnisations such as UNCITRAL (The United Nations Commission on International Trade Law), Unidroit (International Institute for the Unification of Private Law ), and The Hague Convention on Private International law have been active in promoting the harmonisation of private international law. UNCITRAL has been particularly successful in the promulgation of its texts because of its broad membership and wide participation in the preparation of its texts.
The International Institute for the Unification of Private Law (Unidroit) is an independent intergovernmental organisation with its seat in Rome. Its purpose is to examine ways of harmonising and co-ordinating the private law of States and of groups of States, and to prepare gradually for the adoption by the various States of uniform rules of private law. Unidroit's objective, as defined in its Statute and as indicated by its full name, is the unification of private law.
The Hague Conference on Private International Law is an intergovernmental organisation the purpose of which is “to work for the progressive unification of the rules of private international law” (Statute, Article 1)

 27. Arbitration: of current interest and to be found on the Net, eg.: the South African Law Commission “Discussion Paper 69, Project 94: Draft International Arbitration Act for South Africa” which is based on the UNCITRAL Model Law open for comments until 31 March 1997 (will be highly influential in Africa); England, Arbitration Act 1996, not based on the UNCITRAL model law, drafted with careful consideration of modern arbitration practice (influential within the Commonwealth).

 28. The CISG has been hailed as “the centrepiece of international trade law”, Clive Schmitthoff, Export Trade: The Law and Practice of International Trade, 9th ed. (Stevens & Sons, London: 1990) p. 252. As “the first truly international sales law to be accepted by broad segments of the international community of nations”, Id. at 18. As “the most significant piece of substantive contract legislation in effect at the international level” Financial Times (London: September 21, 1993). And as “the biggest success so far achieved by intergovernmental attempts at unification of commercial laws.” Sevón, Leif. “Obligations of the buyer under the Vienna convention on the international sale of goods”. Tidskrift utgiven av Juridiska föreningen i Finland, nr. 126, 5-6 (1990) pp. 327-343. “It is beyond doubt that the UN Sales convention will be the predominant instrument governing the rights and obligations of sellers and buyers in the international sale of goods”. For this collection of quotes see “A Uniform Commercial Code for International Sales? We have it now”. Stewart F. Hancock, Jr. New York State Bar Journal, January 1995.

 29. Examples: The United Nations Convention on Contracts for the International Sale of Goods 1980, Article 7; The Unidroit Principles of International Commercial Contracts, 1994, Article 1.6; The Principles of European Contract Law, (1996 draft of the final text) Article 1.106; The United Nations Convention on the Carriage of Goods by Sea (The Hamburg Rules) 1978, Article 3; The United Nations Convention on the Limitation Period in the International Sale of Goods 1974 and 1978, Article 7.

 30. J. Honnold, “Uniform words and uniform applications. Uniform Words and Uniform Application: The 1980 Sales Convention and International Juridical Practice” / J.O. Honnold. Einheitliches Kaufrecht und nationales Obligationenrecht. Referate Diskussionen der Fachtagung. am 16/17-2-1987. Hrsg. von P. Schlechtriem. Baden-Baden, Nomos, 1987. p. 115-147, at p. 127-128.

 31. A suggestion was made that it could be expected that the information be made available through UN Depository Libraries. See Samson (Canada & Quebec)

 32. The technology did not the exist in a form that would make his idea practicable, nor did its user-base exist at that time.



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