Do We Need a Global Commercial Code?

Authors

Michael Joachim Bonell

Abstract

The International Institute for the Unification of Private Law (UNIDROIT) first launched the idea of preparing a code of inter- national trade law. In 1970, the Secretariat of UNIDROIT submitted a note to the newly established United Nations Commission on International Trade Law (UNCITRAL) in justification of such an initiative and indicated some of the salient features of the project. What was proposed was a veritable code in the continental sense. The proposed code included two parts: part one dealing with the law of obligations generally, and part two relating to specific kinds of commercial transactions. However, the “Progressive codification of international trade law” project was never given absolute priority. The “Progressive codification” was hampered by UNIDROIT’s other commitments and limited resources and by continued skepticism as to the project’s feasibility. Years later, the scope of the project was substantially altered and work then focused on the preparation of what is now known as the “Principles of International Commercial Contracts.”

The Secretary of UNCITRAL has recently proposed the “Global Commercial Code,” which is something very different from the original UNIDROIT proposal. Rather, it resumes work on a “world code of international trade law” advocated by Clive M. Schmitthoff some twenty years ago. The “Global Commercial Code” is similar to Schmitthoff’s proposal in that it is conceived as an open-ended instrument intended “to weld together . . . into a logical, integrated work,” existing and future uniform laws in the field of international trade law.

It is by no means a coincidence that this idea has reemerged. The last two decades have seen the world-wide success of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and also the adoption of additional international uniform laws dealing with topics within specific areas such as transport law, banking law, arbitration, e-commerce, and bankruptcy. The proliferation of specific uniform laws makes the idea of combining these specific pieces into a unified whole more compelling. Since most of the recently adopted instruments have been prepared under the auspices of UNCITRAL, its Secretary has taken the initiative to re-open discussion on the codification of international trade law. The General Assembly of the United Nations gave UN- CITRAL the formal mandate “[to] further the progressive harmonization and unification of international trade by: (a) coordinating the work of Organizations active in this field and encouraging cooperation among them.”

Obviously, it is beyond the scope of this comment to address all the questions raised by a far-reaching project like the proposed codification of international trade law. Instead, I will concentrate on two main aspects: one, the kind of code envisaged and two, the relationship between the code and the general contract law.

Recommended Citation

Michael J. Bonell, Do We Need a Global Commercial Code?, 122 Dick. L. Rev. 85 (2017).
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol122/iss1/9