The Futility of Unification and Harmonization in International ...

6the former socialist countries to adopt new laws in support of a market economy. The array ofmultinational academic talent and detailed comparative studies of legal systems that these projectsengage would be the envy of most international harmonization efforts.Conversely, efforts simultaneously to reform the legal systems of many countries tends to requireparticipants who have some multilingual, if not multicultural, talents. Persons working on the projectmust speak to and understand each other, something that proceeds more effectively if they candispense with interpreters. This requirement cuts down on the pool of talent available for suchprojects.A different argument for law reform through unification rests on the distinctive issues presentedby international commerce in a world of national legal systems. Cooperative rulemaking byrepresentatives of many states may solve collective action problems that deter individual states fromenacting optimal rules. An example I discuss later in this paper involves the treatment of foreignclaimants in a bankruptcy proceeding. An ideal system would specify clear and precise choice-of-lawrules to allocate the authority to resolve legal claims to the jurisdiction with the greatest interest ineach transaction and otherwise would discourage discrimination against foreign claimants thatdiminishes the overall efficiency of a bankruptcy system. But absent coordination among states, eachnation has an incentive to adopt rules that, on the margin, favor nationals over foreigners in thedisbursement of the bankrupt’s estate. They can do so not only by transparently devaluing foreignclaims, but also by applying local law to unravel contracts or property claims formed in a differentlegal environment. An international regime might increase overall welfare by giving every state astake in a system that eliminates such discrimination.A final opportunity for law reform through international harmonization concerns a narrow butsignificant category of cases. It rests on perceptions of political style in a world where national pridestill carries considerable weight. During the last decade many countries that largely had eliminatedformal market relations from their economies have decided, with varying degrees of enthusiasm, toembrace private commerce. Most approach the task with little or no suitable domestic law, and mightdo better simply to appropriate a well elaborated foreign body of commercial rules, such as that ofNew York or England. But however pragmatic such a move might be, few of these newly marketorientedcountries feel secure enough in their national identities to permit a naked embrace of foreign13legal systems. Instead, they wish to preserve the form of sovereign equality even as they struggleto meet needs creates by distinctive gaps in their law. For these states, an international instrumentcan provide the right solution. It may permit the country in need of a legal tradition to embraceforeign commercial law while seeming to preserve its sovereign dignity and independence.C. Developing Intermediaries13This insecurity by no means is limited to former socialist countries. Consider, for example, the mixture of amusementand dismay with which Justice Scalia, himself a former professor of comparative law, greeted the possibility that Article 17of the Warsaw Convention required signatory states to incorporate French law concerning the definition of legally cognizableharm into their domestic legal systems. Zicherman v. Korean Air Lines, 516 U.S. 217, 222-23 (1996).