The Futility of Unification and Harmonization in International ...

14Does the similarities among these technocratic lawmaking processes extend to the content of lawsthey produce? If so, we can predict that the instruments intended to promote unification will displayseveral characteristics. They often will increase legal risk beyond optimal levels. The increase willcome from substituting an international standard that leaves considerable discretion to nationaldecisionmakers, especially judicial bodies, for preexisting national rules that may be more developedand confining. Those instances where the instruments provide greater certainty than does priornational law often will represent victories for narrow economic interests rather than the generalwelfare. The triumphs of these interests should occur in cases where a single concentrated groupwith a coherent preference faces no opposition from other such groups and finds it possible tooutmaneuver the reformist members of a task force when it lobbies the body that approves aninstrument. More generally, we should not expect unification efforts to achieve a clear and definitebreak with the prior laws even when the status quo seems inadequate in light of broadly acceptednormative criteria.How accurate are these predictions? In the next section I review several important instrumentsthat have emerged from the international unification process. My survey, while neithercomprehensive nor systematic, does suggest that technocratic lawmaking does no better in thatinternational arena than when it proceeds through the ALI or the NCCUSL. I raise enough questionsabout the overall value of past efforts to justify an attempt to develop alternative approaches tounification and harmonization.D. Open-ended Discretion and Bright Lines in Unification InstrumentsI examine six instruments. The selection rests not on any presumed criteria of typicality, as Iremain unsure as to what constitutes a “representative” unification law. Rather, I concentrate onprominence and significance. Different unification organizations produced these laws, so they do notreflect only one group’s predilections. Four of the first five instruments—the Hague Rules, theWarsaw Convention, the CISG, and the UCP—today govern a wide array of international commercialtransactions. The Hamburg Rules purport to replace the Hague Rules and thus deserves considerationalongside the preexisting law. The sixth, UNCITRAL’s Model Law on Cross-BorderInsolvencies (UNCITRAL Insolvency Law), was adopted in 1997 and has not yet come into force,directly or indirectly, anywhere. But it represents one important group’s effort to wrestle with agrowing problem presenting clear collective action difficulties. How the model law confronts thesechallenges suggests something generally about the ability of unification instruments to produce gainsfrom international cooperation.1. Sea Transport—The Hague and Hamburg RulesConsider first the unification of the legal rules relating to one of the most ancient technologies ininternational commerce, namely carriage of goods by ship. The lion’s share of international sale ofgoods involves sea transport. Technological innovations such as containerization, advancedtelecommunications, satellite-assisted navigation, and electronic storage and dissemination of shippingdocuments and information have affected the efficiency, cost structure and reliability of this industry,but the fundamental legal issues have not changed much since the time of the Phoenicians.