The Futility of Unification and Harmonization in International ...

10In each of these cases, the technocratic model of lawmaking prevails. The persons who representnational members at the conferences that approve task force proposals are selected more for theirreputation as specialists than because of political, bureaucratic, or industrial ties. Working groupshave stable membership but a limited terms of reference, and not many people participate in morethan one. Turnover is higher in the delegations sent to the periodic conferences that review what theworking groups have produced.The International Chamber of Commerce (ICC) differs significantly in its structural form from thepublic bodies mentioned above. It draws its membership from the private sector, and chooses itsexperts more on industry interest than academic prestige. It does not have to answer to nationalgovernments either in the choice of specialists assigned to drafting projects or in the approval of legalinstruments. Rather, it forms commissions linked largely to industrial sectors (banking, telecommunications,and the like) which, among other things, promulgate standardized contractual termsfor particular transactions. Unlike the other groups, the ICC also conducts an arbitration service thatallows it to supervise the interpretation of its instruments. But the ICC also collaborates with theother international institutions in all areas of mutual interest. It maintains informal ties with theworking groups and secretariats and normally sends observers to the various conferences that takeup proposed legislation. It also coordinates its activities with industry-specific bodies of legal experts,such as the Legal Committee of the International Civil Aviation Organization or the Comité MaritimeInternational.Much distinguishes these organizations, which have their own histories, cultures and agendas, butwhat interest me are the common elements of their lawmaking process. At their heart is an interplaybetween an ad hoc task force consisting of academics and practitioners with great substantivecommand of the subject under consideration, and a broader body of lawyers, typically well-seasonedand distinguished, whose approval is necessary before the group will embrace a task force proposalas its own. Membership in the task forces tends to be stable but not overlapping, while the broadergroup has a less stable membership but a broader range of lawmaking authority. The members ofboth bodies, the task forces and the broader group, bring their own preferences and interests but donot belong to parties or coalitions that can impose discipline and develop collective programs. Evenin those organizations where the members in the larger body have some sort of official status asrepresentatives of their nations, such as UNCITRAL, UNIDROIT and the Hague Conference, rarelydo national governments impose substantial political constraints on their emissary. Rather, thetechnical nature of the subject matter ensures the relative obscurity of the process.What these bodies seem to represent, in other words, is a fairly complete realization of thetechnocratic ideal of lawmaking. Each nation’s leading specialists convene to draft an instrument thatought to embody the best rules that they can devise for international commerce. National politiciansparticipate only indirectly, mostly by retaining the final say over accepting the completed instrument.The technical experts have a relatively free hand to discover the common ground that can transcenddifferences in culture, history, levels of economic development, and social structure. While ideologicaland conceptual barriers may remain, the process should be free of less elevated distractions.