Revisiting the Autonomous Contract - Transnational contract law, trends and supportive structures Ralph Amissah*
3. Modelling the private international commercial law infrastructure
Apart from the study of “laws” or the existing legal infrastructure, there are a multitude of players involved in their creation whose efforts may be regarded as being in the nature of systems modelling. Of interest to this paper is the subset of activity of a few organisations that provide the underpinnings for the foundation of a successful transnational contract/sales law. These are not amongst the more controversial legal infrastructure modelling activities, and represent a small but significant part in simplifying international commerce and trade.14
Briefly viewing the wider picture, several institutions are involved as independent actors in systems modelling of the transnational legal infrastructure. Their roles and mandates and the issues they address are conceptually different. These include certain United Nations organs and affiliates such as the United Nations Commission on International Trade Law (UNCITRAL),15 the World Intellectual Property Organisation (WIPO)16 and recently the World Trade Organisation (WTO),17 along with other institutions such as the International Institute for the Unification of Private Law (UNIDROIT),18 the International Chamber of Commerce (ICC),19 and the Hague Conference on Private International Law.20 They identify areas that would benefit from an international or transnational regime and use various tools at their disposal, (including: treaties; model laws; conventions; rules and/or principles; standard contracts), to develop legislative “solutions” that they hope will be subscribed to.
A host of other institutions are involved in providing regional solutions.21 Specialised areas are also addressed by appropriately specialised institutions.22 A result of globalisation is increased competition (also) amongst States, which are active players in the process, identifying and addressing the needs of their business communities over a wide range of areas and managing the suitability to the global economy of their domestic legal, economic, technological and educational23 infrastructures. The role of States remains to identify what domestic structural support they must provide to be integrated and competitive in the global economy.
In addition to “traditional” contributors, the technology/commerce/law confluence provides new challenges and opportunities, allowing, the emergence of important new players within the commercial field, such as Bolero,24 which, with the backing of international banks and ship-owners, offers electronic replacements for traditional paper transactions, acting as transaction agents for the electronic substitute on behalf of the trading parties. The acceptance of the possibility of applying an institutionally offered lex has opened the door further for other actors including ad hoc groupings of the business community and/or universities to find ways to be engaged and actively participate in providing services for themselves and/or others in this domain.
14. Look for instance at national customs procedures, and consumer protection.
22. e.g. large international banks; or in the legal community, the Business Section of the International Bar Association (IBA) with its membership of lawyers in over 180 countries. http://www.ibanet.org/
23. For a somewhat frightening peek and illuminating discussion of the role of education in the global economy as implemented by a number of successful States see Joel Spring, Education and the Rise of the Global Economy (Mahwah, NJ, 1998).