The Futility of Unification and Harmonization in International ...

Several consequences flow from the assumption that members of the approving bodies, in the faceof their relative ignorance about what the projects will do, will have greater respect for theinformation provided by interest groups than that offered by their nominal subordinates, the membersof the task force. Interest groups should be most effective in derailing proposed rules that theirmembers would find harmful. Where a single interest group brings pressure to bear on a project andno other group participates, the group also has an advantage in shaping the project to benefit itsmembers. In the more common scenario where well organized groups have conflicting interests, thepressure inside the lawmaking body to produce something will lead to the adoption of instrumentsthat have the form of a legislative enactment but that contain few or no rules that will impose clearcosts on any organized group. In practice such instruments must employ rules that postpone hardchoices by leaving it to the discretion of future decisionmakers to make them.Summarizing the argument, the new work on the political economy of private lawmaking bybodies of technical experts predicts that: (1) many rules will vest considerable discretion in decisionmakers,such as judges, rather than specifying outcomes that must flow from described circumstances;(2) those rules that are precise and constrain decisionmakers will largely reflect the preferences ofparticular interest groups, such as banks, broadcasters, common carriers, etc.; and (3) the rules takenas a whole will not constitute a clear and definite departure from the status quo, because interestgroups will enjoy considerable success in blocking any rules that entrench on their particularpreferences.The various organizations active in the development of unified international commercial law seemremarkably similar to the ALI and NCCUSL. Their reliance on working groups formed on a perprojectbasis, as opposed to a permanent legislature involved in addressing a broad legislative agenda,discourages logrolling. Even though several of the organizations (UNCITRAL, the HagueConference, UNIDROIT, the EU and the OAS) consist of official delegations chosen by nationalgovernments, as a practical matter political agency plays no role in their work. The technical natureof the task and the importance of professional reputation, as opposed to political connections, in theselection process means that the members act in accordance with their own views of what laws arebest, not pursuant to instructions from a political body. The members of the working group typicallypossess far more information about the implications of their proposals than do the persons who attendthe conference that adopt particular instruments. And the working group members, by the nature oftheir investment in these projects, tend to have stronger preference for altering the status quo thando the conference delegates.The similarity is not complete. The ALI and NCCUSL have more stable memberships than theconferences or other broad bodies affiliated with the institutions that produce internationalcommercial laws. Typically a member of the ALI and the NCCUSL serves without term, while thedelegations to the various international bodies tend to turn over more frequently. But this distinctionshould accentuate, rather than diminish, the information asymmetries between the working groupsand the conferences and thus enhance the tendency of the conference delegates to look to outsiders,especially those associated with interest groups, for help.13