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\marglsxn1440\margrsxn1440\margtsxn720\margbsxn720\pgnrestart\pgnstarts1\fet2{\header\cbpat0 \trowd\cbpat0\clpadl100\clpadfl3\clpadr100\clpadfr3\clpadl100\clpadfl3\clpadr100\clpadfr3\cellx901\clpadl100\clpadfl3\clpadr100\clpadfr3\clpadl100\clpadfl3\clpadr100\clpadfr3\cellx8112\clpadl100\clpadfl3\clpadr100\clpadfr3\clpadl100\clpadfl3\clpadr100\clpadfr3\cellx9014\intbl \cbpat0 \cell\intbl \cbpat0 \cell\intbl \cbpat0 \fi0 \qr \sa0 \sb0 \li0 \ri0 \sl240\slmult1

\f12 \fs16 {\i Page}{\i \chpgn }\cell\row \pard\cbpat0 \par}\cols1\cbpat0 \cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1\li0 \f12 \fs24 {\b International}{\b &}

{\b Comparative}{\b Law}{\b Quarterly}\par\sa0\sb0\ql \cbpat0 \fi0 \qc \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 2001\par\sa0\sb0\ql \cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1\f12 \fs24 {\b Insularity}{

\b or}{\b leadership?}

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{\b The}{\b role}{\b of}{

\b the}{\b United}{\b Kingdom}{\b in}{\b the}{\b harmonisation}\li0 {

\b of}{\b commercial}{\b law}\par\sa0\sb0\ql \cbpat0 \fi0 \qc \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 Roy Goode\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 {\b Subject:}Commercial law\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1

\f12 \fs20 {\b Keywords:}Commercial law; Harmonisation\par\sa0\sb0\ql \cbpat0 \li0 \par\cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1\f12 \fs22 {\b \i \cf17*I.C.L.Q.}{\b \i \cf17751}{

\b I.}{\b INTRODUCTION}\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 THE last few decades have seen a substantial growth in what has become known as transnational \li0 commercial law, by which I mean that body of commercial law principles and rules, from whatever \li0 source, which is common to anumber of legal systems. The various types of harmonisation fall \li0 broadly into four groups, each possessing its own implementing agency:\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 \bullet Legislation--the task of governments and legislatures\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1

\f12 \fs20 \bullet Judicial parallelism and judicial co-operation--the task ofjudges\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1

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\f12 \fs20 \bullet Business practices, codes and model forms, including contractually incorporated uniform rules \li0 published by international bodies--the task of the international business community and its national \li0 and international organisations\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 \bullet International restatements--the task of scholars.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1

\f12 \fs20 In the limited space available I shall address only the first and last of these and confine myself to \li0 private, transactional law. I am not concerned here, except at the margins, with public law regulating \li0 transactions or institutions. My focus is the contribution to the development of transnational\li0 commercial law by United Kingdom judges, practising lawyers, businessmen and legal scholars. My \li0 thesis is that we make a major input into the fashioning of international instruments of different kinds \li0 but all too often walkaway from the finished product, so that if we adopt the instrument at all we come \li0 in very much later than our major competitors and lose the opportunity togive leadership to the \li0 international community and to gain the influence which that leadership would bring in its train. After \li0 explaining why I regard transnational commercial law as important in an era of globalisation I shall \

li0 attempt to analyse the reasons for our failure to become more internationalin our approach to a legal \li0 regime for cross-border transactions, the consequences of that failure and various ways in which we \li0 might restore the vision and influence which at the beginning of the century led to the adoption of UK\li0 commercial law statutes almost verbatim throughout the common law world.\par\sa0\sb0\ql \cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1\f12 \fs22 {\b \i \cf17*I.C.L.Q.}{\b \i \cf17752}{

\b II.}{\b HARMONISATION}{\b THROUGH}{\b LEGISLATION}\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 Harmonisation through legislation has two aspects. The first is the implementation of international \li0 instruments: the ratification of international conventions and the adoption, wholly or in part, of model \li0 laws. The seco

nd is the enactment of legislation which is domestic in character but which may\li0 nevertheless exert a two-way influence on transnational commercial law, because it draws on the \li0 laws of other countries and/or because it is itself used as a model or source of ideas by foreign \li0 governments and legislatures. This second aspect, which may be termed legislative parallelism, is \li0 often overlooked in discussions of transnational commercial law. It is, however, highlysignificant both \li0 for the improvement of our own law and for the exportability of our law to other countries, particular \li0 developing countries and thosethat have moved or are in transition from a planned economy to a \li0 market economy, thereby extending the influence of the common law in general and Englishlaw in \li0 particular.\par\sa0\sb0\ql \cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1\f12 \fs22 {

\b \i A.}{\b \i International}

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{\b \i Conventions}\par\sa0\sb0\ql \cbpat0 \li0 \par\cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1\f12 \fs22 {\b 1.}

{\b WHY}{\b INTERNATIONAL}{\b COMMERCIAL}{\b LAW}{\b CONVENTIONS}{\b ARE}

{\b IMPORTANT}\cbpat0 \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\li0 \f12 \fs20 Those engaged in international commerce have become increasinglyaware of the need to ensure \li0 that national laws are adequately adapted to the needs of global markets and cross-border \li0 transactions. The time has longpassed when domestic legislation shaped for internal trade can \li0 provide sensible solutions to the problems of international commerce. Even within the fieldof contract \li0 law, where parties to an international agreement should be, and usually are, given a wide measure of \li0 freedom to make their own rules andchoose their own law, there may be substantial advantages in \li0 uniform law within a restricted field. The parties are able to sing from the same hymn sheet,

to \li0 become familiar with the text, to read it in their own language, and toreduce their dependency on \li0 local experts in every jurisdiction in which they transact business. Moreover, uniform rules provide a \li0 neutral legal regimefor the many cases where the parties do not select the applicable law and, \li0indeed, conclude their agreement informally--for example, on the telephone--andsettle only the most \li0 essential terms. The success of the carriage of goodsconventions provides a striking illustration of \li0 the advantages of uniformrules in cross-border commerce. So too does the Convention on Contracts \li0 forthe International Sale of Goods.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 In any event, the progressive move towards the globalisation of commerce and finance has resulted \li0 in a much greater awareness of the need to go

beyond contractual relationships and to harmonise at \li0 least some of the rules relating to the acquisition and transfer of rights {\i in}{\i rem}in movable commercial \li0 assets, tangible or intangible, in order to enhancethe security of transactions. Let us consider the \li0 following:\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 {\b \i \cf17*I.C.L.Q.}{\b \i \cf17

753}\bullet Cross-border dealings in receivables, which may themselves be international in \li0 character

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\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 \bullet The need for an adequate security regime to protect the financing of mobile equipment of high unit \li0 value\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 \bullet The legal efficacy of cross-border settlement and payment system rules\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1

\f12 \fs20 \bullet The creation and protection of ownership and security interests in pools of indirectly held investment \li0 securities which may involve anissuer and tiers of securities intermediaries, all in different countries\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 \bullet The implications, yet to be worked out, of cross-border electronic commerce\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 \bullet The growth of cross-border insolvency of multinational groups of enterprises.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 These are matters which, in the light of the magnitude of the interests at stake, can no longer be left \li0 exclusively to individual national laws,

though these will always retain a prominent role except, in the \li0 case of the European Union, where the field is occupied by European Community law. So the\li0 importance of harmonising at least some rules of substantive law by international convention should \li0 not be under-estimated. We are not here talking ofa mere academic desire for a greater convergence \li0 of legal systems; we aretalking of matters which industry, commerce and banking regard as of \li0 immense importance to them.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 Two illustrations will serve to underline this point. At a seminar inLondon to discuss a uniform conflict \li0 of laws rule to govern dealings in indirectly held investment securities we were told by a \li0 representative from one participant that systemic risk was a constant topic of discussion, there had\li0 been a drastic increase in the use of collateral and the figures were in bi

llions of dollars. The industry \li0 urgently needed a conflicts rule which adopted the place of the relevant intermediary approach \li0 (PRIMA). Moves are nowunder way both for a new European Directive and for a Hague Conference \li0 private international law convention on the subject. Happily, as I shall mention, the UK is playing a \li0 leading role in both of these initiatives, through the intensive efforts of two practitioners, Richard \li0 Potok (the driving force behind the project) and Guy Morton, and led on the government side by the \li0 Treasury.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 My second example relates to certain types of mobile equipment of high unit value, notably aircraft, \li0 railway rolling stock and space property. The financing of such equipment involves huge outlays. It is \li0 estimated that

over the next 10 years more than 1,000 commercial satellites will be launched valued \li0 at $US 5 billion and that over the next 20 years expenditure on the financing of new aircraft alone will \li0 exceed $US 1 trillion. So security overthe financed object is of crucial importance to the financier. But \li0 how do we protect security interests in objects that move daily from one country to another or, in the \li0 case of satellites, are not on earth at all? How do we ensure that an interest created under one legal \li0 regime will be recognised and enforced in others? The ambitious project initiated by UNIDROIT is the \li0 creation of an {\b \i \cf17*I.C.L.Q.}{\b \i \cf17

754}entirely new type of interest in such mobile equipment, an international \cbpat0 \cbpat0 \li0 \ri0 \qj \f12 \fs20 security or title-retention interest which w

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ill be able to be created with very simple formalities, will \li0 confer on thesecured party a range of essential default remedies and will be perfected by entry in an \li0 international register, having priority over unregistered and subsequently registered interests in \li0 accordance with a short and simple set ofpriority rules. A study conducted under the auspices of \li0 INSEAD suggests that in relation to aircraft financing international acceptance of a legal regime of this \li0 kind, by increasing the security of aircraft receivables, could sign

ificantly raise their credit rating and \li0 reduce borrowing costs by as much several billion US dollars a year.{\field {\*\fldinst HYPERLINK \\l "fn1"}{\fldrslt\ul\cf2 \cf13\fs12 {\ul \fs20 \super \cf131}}} \f12 \fs20 This important Convention, \li0 which in relation to aircraft is being co-sponsored by UNIDROIT and the International Civil Aviation \li0 Organization, is expected to be concluded at a Diplomatic Conference to be held in CapeTown at the \li0 end of October 2001.\par\sa0\sb0\ql \cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1\f12 \fs22 {

\b 2.}{\b THE}{\b NEED}{\b FOR}{\b LIMITED}{\b OBJECTIVES}\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1

\f12 \fs20 Just as no one--at least, no one of sound mind--enters the academic world because of the pay, so \li0 also no one who has experience of the time, hard work and sheer frustration involved in the \li0 preparation of instruments ofharmonisation embarks lightly on a uniform law project. I am not one of \li0 those who believes that harmonisation is {\i per}{\i se}a good thing. Even if it were feasible (which plainly it \li0 is not) to harmonise all private law, whether at the international level or at the regional level--for \li0 example, within the European Community--I do not think it would be sensible to do so. In the \li0 European context Lord Goff has recently observed:

\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 We have today in Europe a whole range of legal cultures \uc1\u8230\'6D We should be profoundly grateful for this \li0 diversity. We can learn far more from these diverse systems than we could have ever have derived \li0 from a single monolithic regime.{\field {\*\fldinst HYPERLINK \\l "fn2"}{\fldrslt\ul\cf2\cf13\fs12 {\ul \fs20 \super \cf132}}}\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 In his slim but classic work {\i Comparative}

{\i Law,}that distinguished Cambridge scholar Professor Harold \li0 Gutteridge warned of

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the damages of over-ambition in the face of fierce loyalties to domestic law:\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 The citizens of many countries are deeply attached to their nationallaw; at one extreme we have, for \li0 instance, the Frenchman who carries in hispocket the {\i Code}{

\i Civil,}the dog-eared leaves of which bear \li0 testimony to the frequency with which it is consulted, and, at the other end of the line, the Englishman \li0 who neverlooks at a law book but is nevertheless convinced that his common law is the quintessence \li0 of human wisdom and justice.{\field {\*\fldinst HYPERLINK \\l "fn3"}{\fldrslt\ul\cf2 \cf13\fs12 {\ul \fs20 \super \cf133}}}\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 {

\b \i \cf17*I.C.L.Q.}{\b \i \cf17755}Yet Gutteridge remained firmly committed to the process of harmonisation. The

point \li0 he was making was that it is necessary to be selective and to keep any harmonising project within \li0 manageable limits. During the last 25 years international organisations involved in the harmonisation \li0 of private law andprivate international law have become keenly aware of the need to proceed with \li0 circumspection, and in particular, not to embark on a project of harmonisation before satisfying \li0 themselves that the differences in national laws create a serious impediment to cross-border trade; to \li0 limit the scope of the pro

ject to what is both necessary and acceptable to States with widely differing \li0 legal philosophies; and to involve the relevant interest sectors not merely through consultation on a \li0 finished product but in the creation of the product itself.\par\sa0\sb0\ql \cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1\f12 \fs22 {\b 3.}{\b THE}{\b APPROACH}{

\b OF}{\b THE}{\b UNITED}{\b KINGDOM}{\b TO}{\b THE}{\b HARMONISATION}

{\b OF}\li0 {

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\b COMMERCIAL}{\b LAW}\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 Writing in 1949 Gutteridge observed that Great Britain's reputation for obstructing uniform law from \li0 selfish motives was undeserved and that wit

h limited exceptions the movement for unification owed \li0 much to British initiative and collaboration. He instanced such unifying measures as the York-Antwerp \li0 Rules of General Average, the various Brussels Conventions on Maritime Law, the 1921 Hague Rules \li0 on the Liability of Shipowners and the Foreign Judgments (Reciprocal Enforcement) Act 1933.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 It remains the case that the United Kingdom makes a major contribution to the production of \li0 international instruments of various kinds. Our academic and practising lawyers and lawyers and \li0 others in the civil service participate prominently as chairpersons or members of study groups, \li0 working parties and as rapporteurs; our government departments make an important input through \li0 the submission of papers, the organisation of seminars and conferences

, and participation as \li0 members of UK delegations to diplomatic conferences;our national trade organisations contribute \li0 submissions through the international bodies of which they are members. And the UK is highly \li0 regarded forits commitment to support of the world's leading general harmonisation institutions, \li0 notably UNIDROIT, UNCITRAL, the Hague Conference and the International Chamber of Commerce. \li0 But in the field of transnational commercial law ourrecord of implementation has so far been rather \cbpat0 \cbpat0 \li0 \ri0 \qj \f12 \fs20 dismal.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 One could give a number of illustrations. The most striking is the inertia in regard to the 1980 UN \li0 Convention on Contracts for the International Sale of Goods (CISG). This is a major gap-filling \li0 convention consisting of some 101 Articles and dealing with the contractual (but not the property) \li0

aspects of sale. A number of its rules are undoubtedly better than those foundin our own Sale of \li0 Goods Act, for example, the rule that risk passes with control (i.e. the delivery of actual or \li0 constructive possession) rather thanwith ownership, which is the rule in the Sale of Goods Act and \li0 which our courts in practice avoid by inferring a contrary intention on the part of the parties. Now the \li0 Convention {\b \i \cf17*I.C.L.Q.}{\b \i \cf17756}offers no threat whatsoever to party autonomy. It is essentially a gap-filler

\li0 designed to make provision where, as is not at all uncommon in international trade, the parties have \li0 failed to do so because their contract has been concluded informally on the telephone or on the basis \li0 of a brief descriptionof the essential terms. The parties are free to exclude the convention almost in \li0 its entirety or to exclude or vary particular provisions, either directlyor by selecting the domestic law \li0 of a particular country to govern their contract. The Convention has been ratified by no fewer than 57 \li0 States. Theyinclude virtually all our major competitors except Japan and India, the latter awaiting \li0 ratification by the UK. Government is not opposed to ratification of the convention; it is simply that it \li0 has not been found possible to provide legislative time. Now it is undoubtedly true that the volume \li0 and complexity of modern legislation are vastly greater than they were in Gutteridge's time. Even so, \li0 one has to say that the excuse of lack of parliamentary time beg

ins to wear a little thin after 20 years!\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 Even where we do ratify a convention we can take an unconscionably lo

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ng time to do it. One of the \li0 most successful international conventions of all time is the 1958 New York Convention on the \li0 Enforcement of Arbitral Awards, which 123 States have now adopted and which has made a huge \li0 contribution to the growth of international commercial arbitration. Now you might think that as one of \li0 the world's leading arbitration centres the United Kingdom would have been one of the first to ratify \li0 the New York Convention. In fact ittook us no less than 17 years. Far from being the first we were \li0 48th in lin

e, coming in several years after most of our major competitors, including, thistime, India. \li0 Happily we were not the last. Malta ratified the convention inSeptember 2000, some 43 years after \li0 the event. So it's never too late to repent!\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 When we make such a major contribution to the fashioning of an international instrument, is it not \li0 sensible to adopt it and to give our courts the same opportunity as is eagerly seized by their \li0 counterparts from overseas to offer their own interpretative guidance which will then be available to \li0 courts and jurists in other jurisdictions? Would not this also have the effectof increasing still further \li0 the influence of English law and English courts?

\par\sa0\sb0\ql \cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1\f12 \fs22 {\b 4.}{\b SOME}{\b REASONS}{\b FOR}{\b NON-IMPLEMENTATION}{\b OF}

{\b INTERNATIONAL}\li0 {\b INSTRUMENTS}\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 Why does the UK find it so difficult to give leadership in the adoption of international instruments? \li0 Leaving aside sheer bloody-mindedness--aswhere the UK alone refused to sign the European \li0 Insolvency Proceedings Convention because of the row over BSE in British beef--the reasons appear \li0 to be a combination of policy considerations and perceived practical difficulties.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1

\f12 \fs20 As regards policy, there are those who consider that English law in all its majesty is greatly superior to \li0 anything that could be devised at international level. For lawyers in this category the Sale of Goods \li0 Act is thequintessence of perfection, and the notion that we might benefit from CISG in any way at all \li0 is anathema. The fact is that our commercial law did once influence the {\b \i \cf17*I.C.L.Q.}{\b \i \cf17757}whole of the \li0 common law world but our neglect to service it has cost us d

ear, as one common law country after \li0 another has abandoned the old UK legis

lation in favour of new enactments tailored to the needs of \li0 modern commerce. Allied to this notion of the superiority of English law is the implicit assumption that \li0 in an international contract it is English law that will be the g

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{\b \i Model}{\b \i Laws}\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 Just a brief word about model laws--instruments that will not in them

selves acquire legal force at \li0 international level but are available to be adopted by States if and to the extent that they desire to do \li0 so. A good example in the field of commercial law is the UNCITRAL Model Law on International \li0 Commercial Arbitration. The initial response to this from the DTI Advisory Committee on Arbitration \li0 Law (DAC) in its 1989 Report was decidedly lukewarm. A new Arbitration Act was certainly needed. \li0 No doubt the Model Law provisions should be adopted where possible; but while the Model Law was \li0 good enough for countries whose arbitration law was relatively undeveloped--which included \li0 Scotland--it did not appear to have a great deal to offer the English. In those early days we were still \li0 wedded to concepts that had long been discarded in continental Europe: the dependence of the \li0 arbitration clause on the validity of the underlying agreement; the application of English rules of \li0

evidence and English conflict of laws rules in an English arbitration; and, ofcourse, the vital \li0 importance of judicial review of arbitral awards. But bythe time the DAC came to issue its final \li0 consultation paper six years laterits views had undergone something of a sea-change. On the \li0 majority of issues where English law had been felt superior to the Model Law, it now fell into line. The \li0 resulting Arbitration Act 1996, drafted with admirable clarity andprecision by Mr. Geoffrey Sellers, \li0 does, indeed, embody much of the philosophy of the Model Law.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 But what is particularly significant about the Arbitration Act is that, lacking government interest, it \li0 started as a purely private enterprise in which one of our leading arbitrators, Mr. Arthur Marriott, \li0 persuaded private organisations and individuals to contribute funds for the preparation of an

unofficial \li0 Bill, which was in due course produced. Eventually the DTI agreed to take over the Bill and the result \li0 was the excellent product we have today. But we might not have had it at all if there had been no \li0 private initiative. Is this the way to carry our commercial law forward? Perhaps it is!\par\sa0\sb0\ql \cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1\f12 \fs22 {\b \i \cf17*I.C.L.Q.}{\b \i \cf17759}{

\b \i C.}{\b \i Legislative}{\b \i Parallelism}\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 As I have previously explained, even domestic legislation has the potential to contribute to the \li0 harmonisation of commercial law, by a process of borrowing and lending. A proper reform of our \li0 commercial law requires a careful study of developments in other jurisdictions, both civil law and \li0 common law, though naturally in the field of commercial law America has pride of place. Where we \li0 borrow concepts from others we contribute to the harmonisatio

n process, even if only at the level of \li0 ideas and concepts rather than detail. By the same token, if we frame a commercial law statute which \li0 is responsive to the needs of modern commerce, including cross-border commerce, then we h

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ave an \li0 exportable product which will help to spread the influence of English law and resort by foreign lawyers \cbpat0 \cbpat0 \li0 \ri0 \qj \f12 \fs20 toEnglish academic and practising lawyers.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 The sad fact is that we no longer take seriously the review and reform of our commercial law; minor \li0 tinkering is all we seem able to achieve. Almost every statute governing commercial transactions is in \li0 substance, and i

n most cases in form, well over a century old. Instances are the Bills of Sale Acts \li0 1878-1891, the Bills of Exchange Act 1882, the Factors Act 1889, and the Sale of Goods Act, which \li0 though dated 1979 is not substantially changed from the Sale of Goods Act 1893. So we find \li0 ourselves in the twenty-first century with legislation enacted in the nineteenth--a shocking indictment \li0 ofour approach to the modernisation of our law.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 In the field of commercial law we seem to be particularly resistant to legislative change except at the \li0 margins. Successive governments have largely opted out of the field, leaving it to the courts to fill the \li0 vacuum. Our judges do a splendid job, but even though we now recognise that judges do notmerely \li0 declare law, they also create it, there is a clear limit to what ca

n be achieved through the common \li0 law, particularly where it is encumbered by archaic statutes. Our law of personal property security \li0 remains rooted in19th century concepts and legislation despite the fact that no fewer than three\li0 official reports--the Crowther Report on Consumer Credit in 1971, the CorkInsolvency Law Review in \li0 1982 and the Diamond Report on Security Interestsin Property 1988--recommended the adoption of \li0 a functional approach to personal property security law along the lines of Article 9 of the American \li0 Uniform Commercial Code.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 Again, the review of company law, which was launched in 1998 as a project designed to provide a \li0 strategic framework for a modern company law, seems to have moved away from its stated purpose \li0 and to have focused on a series of smaller and detailed changes which, though useful in themselves, \li0 do

not represent a fundamental review starting from first principles. Neverthelessthe Final Report, \li0 {\i Modern}{\i Company}{\i Law,}shows a welcome awareness of the wider issues arising from the review and \li0includes a recommendation that the question of security interests in personal property should be \li0 referred to the Law Commission for a deeper study. The American experience over decades {\b \i \cf17

*I.C.L.Q.}\li0 {\b \i \cf17760}is that by simplifying and modernising commercial law, costs can be significan

tly reduced and \li0 business procedures streamlined.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 There are other, equally pressing, concerns. A leading internationalfinancial lawyer, Mr. Hugh Pigott, \li0 in an article focusing attention on a marked increase in the cross-border use of securities as \li0 collateral, has noted the lack of legal certainty in identifying which laws apply to which parts ofa \li0 transaction.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1

\f12 \fs20 This lack of legal certainty is compounded by the fact that the lawsof the Member States of the \li0 European Union relating to the use of collateral are in many cases complex, inconsistent and \li0 impractical. The resulting un

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certainties seriously impede the efficient use of collateral. This in turn \li0restricts access to financial services and raises costs.{\field {\*\fldinst HYPERLINK \\l "fn5"}{\fldrslt\ul\cf2 \cf13\fs12 {\ul \fs20 \super \cf135}}}

\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 In March of this year the Collateral Law Reform Group of the International Swaps and Derivatives \li0 Association published a report identifying themain legal impediments to the efficient use of collateral \li0 and urging, not an international convention, but a reform of national laws so as to embody certain key \li0 principles that would result in practical harmonisation across Europe--in other words, convergence \li0 through legislative parallelism. This is a warning call we simply cannot afford to ignore.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 The fault does not lie with the civil service, which, though labouring under huge pressures \li0 exacerbated by years of diminution, neglect and denigration, tries very hard to ensure that our law \li0 keeps abreast of developmen

ts. But it is, perhaps excessively, constrained in its thinking by the \li0 difficulties of securing a slot in the legislative timetable. In any event, there are certain fields of law \li0 which are best reviewed outside government, whetherby a departmental committee or Royal \li0 Commission, the Law Commission or some other expert group. Government departments are at their \li0 best in tacklingissues high in political content. But the review and reform of technical generallaw are \li0 matters for outside specialists, working in extensive consultationwith the various interest sectors and, \li0 of course, with participation fromthem and from the relevant government departments. Only the \li0 outsiders havethe knowledge, experience and time to undertake the work and to review \li0 developments in other countries and lessons to be learned from these.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 The fundamental problem is that our parliamentary machinery is wholly

inadequate for the needs of \li0 modern commerce. It is this fact above all that has inhibited a more broad-brush approach by \li0 government and the Law Commissions. The concerns I have expressed are echoed, in the field of \li0 company law, in a thoughtful and imaginative report by the Law Society's Company Law Committee, \cbpat0 \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\li0 \f12 \fs20 {\i The}{\i Reform}{\i of}{

\i Company}{\i Law,}published in February 2000 and endorsed by the Law Reform \li0 Committee of theBar Council. That report repeated criticisms expressed by the committee nine \li0 {\b \i \cf17*I.C.L.Q.}{\b \i \cf17761}years previously that company law reform was failing because of inadequate res

ource, \li0 inadequate consultation, lack of political commitment to make Parlia

mentary time available and a \li0 Parliamentary process which was no longer delivering sound technical legislation, so that \li0 recommendations in reports of the highest quality from bodies such as the Law Commission \li0 remained unimplem

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ented. It also stressed the need for regular review of the state of company law,\li0 saying that 38 years (the period since the Jenkins Report) was too long, particularly when change in \li0 the business sector is more rapid than was previously the case. Every word of this excellent report is \li0 equally true of commercial law; and if 38 years is too long to wait for a new review, what are we tosay \li0 of our commercial law, which has not been the subject of review for over a century?

\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 The only reason our commercial law continues to enjoy regard, both here and abroad, is because of \li0 the quality of our judges, their sensitivity to legitimate commercial needs and their receptiveness to \li0 new legal instruments and concepts fashioned to serve those needs. As an American professor once \li0 remarked to Lord Wilberforce:\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 The elegance, style and analytical powers of the British legal community have survived the decline of \li0 the British Empire intact.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 The combination of well-informed judges and generations of textbook writers has masked the \li0 fragmentation, obscurity and inaccessibility of our c

ommercial law. These deficiencies are not always \li0 evident to judges, for bythe time they come to hear a difficult case a great deal of work will have been\li0 done by counsel and solicitors for all parties, so that the facts are winnowed, the relevant issues \li0 identified and sharply defined and the case cogently presented. But the cost of the legal research \li0 involved in the preparatory process and of taking complex issues of law through the hierarchy of \li0 courts must run to tens of millions of pounds {\i every}{\i year}--and that is only the cost of the lawyers, not \li0 the value of the time of their clients or the cost of impediments to legitimate business.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1

\f12 \fs20 Hence the proposal which I have ventured to put into play for a United Kingdom commercial code. \li0 Now let me be clear about what is envisaged. Itis not the codification of our entire commercial law. In \li0 his lecture at theBritish Academy in November 2000 the Lord Chancellor, Lord Irvine, observed that \li0 no code can be entirely comprehensive.{\field {\*\fldinst HYPERLINK \\l "fn6"}{\fldrslt\ul\cf2 \cf13\fs12 {\ul \fs20 \super \cf136}}} \f12 \fs20 I entirely agree. To seek to codify the whole of commercial \li0 law would be a preposterous undertaking. It would not even be sensible to cover all the main types of \li0 commercial contract. In fact, the code can literally b

e restricted to a handful of topics where review \li0 and, if appropriate, reform are really necessary. So I see no reason to include a treatment of \li0 negotiable instruments other than those {\b \i \cf17*I.C.L.Q.}{\b \i \cf17762}issued on a market as investment securities. \li0 The Bills of Exchange Act isnot perfect but nowadays creates few problems. For the same reason \li0 paper-based payment systems do not need to feature in a commercial code, nor do documentary \li0 credits or demand guarantees, which are perfectly well covered by contractual incorporation of \li0 uniform rules published by the International Chamb

er of Commerce. Again, there is no need to deal \li0 with marine or even nonmarine insurance or with carriage of goods. In fact, the great bulk of the work \li0of our specialist Commercial Court can be readily handled within our existing l

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aw.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 What, then, does qualify for inclusion in a commercial code? First, afew general principles relevant to \li0 commercial contracts, including electronic commerce. Then, the sale of goods, which is the central \li0 commercial contract. Sir Mackenzie Chalmers' Sale of Goods Act was a brilliant codification butnow \li0 needs updating. After all, what was enacted in the nineteenth century

is scarcely likely to be adequate \li0 for the twenty-first Professor Hugh Beale, a Law Commissioner, has identified in a very preliminary \li0 study at least 28 matters which call for reconsideration. I have already referred to the state of our \li0 personal property security law, which is a disgrace. We urgently needa modern law covering dealings \li0 in investment securities, including marketresponsive rules governing indirectly held securities and \li0 their use as collateral, along the lines of Article 8 of the Uniform Commercial Code, and a statement \li0 of the principles and rules governing electronic funds transfers, whichinvolve the turnover of vast \li0 sums every night. Finally, there is much to be said for a restatement of the law relating to suretyship \li0 guarantees, which even if generally satisfactory is hard to access.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1

\f12 \fs20 A code has several advantages over ordinary legislation. It gathers together in one place the main \li0 principles and rules in the selected field. It is prepared by or in collaboration with experts in that field, \li0 who, freefrom the pressures imposed on parliamentary draftsmen in the preparation of ordinary \li0 legislation, can take the time to consult practitioners in the field,to examine developments in other \li0 jurisdictions and to produce a structuredtext in plain English and logical sequence. An excellent \li0 modern example isthe Arbitration Act 1996, where parliamentary draftsmen worked in close \cbpat0\cbpat0 \li0 \ri0 \qj \f12 \fs20 collaboration with the Chairman and members ofthe DAC to produce a text which is widely admired \li0 for its clarity as well as its content. The Act does not attempt to codify the whole of English arbitration \li0 law. It focuses on those principles and rules which are central to arbitration, leaving leeway for the \li0 courts to accommodate the Act to new develop

ments. As Lord Wilberforce pointed out many years \li0 ago when speaking to theLaw Commissions Bill, codification is not the enemy of the development of \li0 the common law but rather its enhancer.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 \uc1\u8230\'6D by presenting to the courts legislation drafted in a simple way by definitions and principles we may \li0 restore to the judges what they may have lost for many years, to their great regret, the task of \li0 interpreting law according to statements of principle, rather than by painfully hacking their way \li0 through the jungle of detailed and intricate legislation. So Ibelieve that a process of codification, \li0 intelligently {\b \i \cf17*I.C.L.Q.}

{\b \i \cf17763}carried out, will revive the spirit of the Common Law rather than militate \li

0 against it.{\field {\*\fldinst HYPERLINK \\l "fn7"}{\fldrslt\ul\cf2 \cf13\fs12 {\ul \fs20 \super \cf137}}}\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 Lord Wilberforce went on to describe the export value of a code:\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 As our friends the French know very well indeed, and apply in practic

e, legal institutions and legal \li0 ideas are a cement of great value in holding together the exporting country and the other countries in \li0 pursuit of common values.{\field {\*\fldinst HYPERLINK \\l "fn8"}{\fldrslt\ul\cf2 \cf13

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\fs12 {\ul \fs20 \super \cf138}}}\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 In 2000 the Department of Trade and Industry kindly hosted a seminarto test the response to the \li0 idea of a commercial code. Of the 60 people who

attended, including academic and practising \li0 lawyers, representatives of banks and multinational companies, all who spoke strongly supported the \li0 codeand not one participant dissented. Moreover, there was a clear consensus in favour of \li0 legislation, not merely a kind of Highway Code, which it was thoughtwould simply add another layer \li0 of uncertainty. The Law Commission has indicated its willingness, subject to the Lord Chancellor's \li0 approval, to examinetwo topics in detail over a two-year period. It is hoped that the DTI will be the \li0 sponsoring department and provide the additional resources needed. It isenvisaged that the project \li0 will be in the nature of a public-private partnership in which the professionals will play an active role. \li0 Professor Christian von Bar, who is directing the European civil code project, has indicated that a UK \li0 commercial code could exercise considerable influence in the develo

pment of commercial law in \li0 continental Europe. So it is doubly important for this project to proceed.\par\sa0\sb0\ql \cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1\f12 \fs22 {\b III.}{\b HARMONISATION}{\b THROUGH}{\b INTERNATIONAL}{\b RESTATEMENTS}

\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 This brings me to the last of my topics, harmonisation not through any normative instrument but \li0 through \uc1\u8216\'6D restatements\uc1\u8217\'6D by international groups of scholars. Two of these have attained particular \li0 prominence: the UNIDROIT Principles of International Commercial Contracts andthe Principles of \li0 European Contract Law produced by a private group, the Commission on European Contract Law. \li0 These sets of principles are not, of course, restatements, for since national laws differ from one to \li0 another theynecessarily change at least some of the rules in each of the legal systems represented. \li0 The search was not for the lowest common denominator but rather for best solutions to typical \li0 problems. The impact of the two sets of Princip

les has exceeded the wildest expectations of their \li0 progenitors, particularly in the field of international commercial arbitration. They demonstrate the \li0 immense persuasive power of rules produced by groups of independent scholars of international \li0 repute which are non-normative and therefore pose no threatto national law but are available as a \li0 resource to courts, arbitral tribunals and legislators. Even more striking is the fact that all the \li0 participants were satis {\b \i \cf17*I.C.L.Q.}{\b \i \cf17764}fied that for the most part the Principles reflected rules already \li0 embodi

ed in their own legal systems.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 Plainly the Principles, which are the product of extensive debate on

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policy issues, concepts and \li0 technical considerations, should feature significantly in university student texts and contract courses. \li0 Unhappily in England, at any rate, they do not. Most of our contract textbooks make no mention of\li0 them at all. Nor, with a very limited number of exceptions, do the Principles appear to feature in \li0 undergraduate or postgraduate courses. This is a reflection of a wider problem, namely the \li0 inadequate, though gradually increasing, attention to comparative law in our law schools. All this is a \li0 pity,

because quite apart from exposing our students to ways of thinking that in somerespects are \li0 different from our own, discussion of other systems and otherrules helps us to see more clearly the \li0 characteristics of our own legal system. Where we do find prominence and support given to the \li0 Principles of European Contract Law is not in the student textbook but in an essay contributed by the \li0 then Lord Chief Justice and current Senior Law Lord, Lord Bingham, inhis important contribution to \li0 the Clifford Chance Millennium Lectures.{\field {\*\fldinst HYPERLINK \\l "fn9"}{\fldrslt\ul\cf2 \cf13\fs12 {\ul \fs20 \super \cf139}}}

\cbpat0 \cbpat0 \fi0 \qc \sa120 \sb120 \li0 \ri0 \sl240\slmult1\li0 \f12 \fs22 {\b IV.}{\b THE}{\b WAY}{\b AHEAD}\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 In the light of this rather lamentable state of affairs in our commercial law, what is to be done? First, \li0 we need to become much more aware of t

he benefits to be derived from implementation of \li0 international instrumentsto the preparation of which we contribute so much. Secondly, we need to \li0 take the servicing of our own commercial law much more seriously than we have untilnow, \li0 recognising that a good modern code which focuses on those aspects ofcommercial life crucial to the \li0 smooth functioning of business and marketscan not only produce better results but also save a huge \li0 expenditure of time and money currently devoted to ascertaining the law and, in addition, provideus \li0 with a product which we can export to other countries. In this task themembers of the Commercial \li0 Bar Association, with their long expertise in handling commercial disputes, can play an invaluable \li0 role.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 Thirdly, we in the law schools must engage the interest of our studen

ts in international instruments \li0 relevant to their fields of study in domestic law, so that they can see how there may be several ways \li0 of tackling a common problem and can have a keener appreciation of the characteristics of theirown \li0 law. There are welcome indications that this is now beginning to happen.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 Finally, there is an urgent need to review our parliamentary procedure in order to find time to \li0 implement international commercial law instruments with which we are in sympathy and to provide the \li0 framework of a modern commercial law. One way is to reduce not only the volume but also the \li0 complexity of {\b \i \cf17*I.C.L.Q.}

{\b \i \cf17765}

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modern legislation. Is it really necessary to add several hundred pages of \li0 text to our tax law every year? Should we be so preoccupied with trying to cover every eventuality \li0 and stop up every loophole? And could we not have a mechanism by which a Bill that is technical \li0 rather than political and has secured a consensus within the sectors affected can be presented to \li0 Parliamentto approve the principles on which it is based and then amended as necessary and \li0 brought into force by statutory instrument? This was one of the many usef

ul proposals advanced by \li0 the Law Society's Company Law Committee in the report to which I have previously referred. Such a \li0 procedure would enable us to simplify and modernise our commercial law and to make it accessible \li0 and exportable and worthy of a country whose capital is the world's leading financialcentre.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 This article is an updated version of a lecture given on 30 November2000 (the COMBAR Lecture).\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 Emeritus Professor of Law, University of Oxford.\par\sa0\sb0\ql \cbpat0 \fi0 \qj \sa80 \sb80 \li0 \ri0 \sl240\slmult1\f12 \fs20 I.C.L.Q. 2001, 50(4), 751-765

\par\sa0\sb0\ql \cbpat0 {{\pict{\*\picprop\shplid1025{\sp{\sn shapeType}{\sv 1}}{\sp{\sn fFlipH}{\sv 0}}{\sp{\sn fFlipV}{\sv 0}}{\sp{\sn fillColor}{\sv 8421504}}{\sp{\sn fFilled}{\sv 1}}{\sp{\sn fLine}{\sv 0}}{\sp{\sn alignHR}{\sv 1}}{\sp{\sn dxHeightHR}{\sv 30}}{\sp{\sn fStandardHR}{\sv 1}}{\sp{\sn fHorizRule}{\sv 1}}{\sp{\sn lineColor}{\sv 9}}{\sp{\sn fLayoutInCell}{\sv 1}}}\picscalex1860\picscaley6\piccropl0\piccropr0\piccropt0\piccropb0\picw1764\pich882\picwgoal1000\pichgoal500\wmetafile8}}\cbpat0 {{\*\bkmkstart fn1}{\*\bkmkend fn1}}\cbpat0 \li0 {\field {\*\fldinst HYPERLINK \\l "srcfn1"}{\fldrslt\ul\cf2 \cf13\f12 \fs14 {\ul \cf131}}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {\f12 \fs14 Anthony Saunders and Ingo Walter, {

\i Proposed}{\i UNIDROIT}{\i Convention}{\i on}{\i International}{\i Interests}{

\i in}{\i Mobile}{\i Equipment}{\i as}{\i applicable}{\i to}{\i Aircraft}

{\i Equipment}{

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\i through}{\i the}{\i Aircraft}{\i Equipment}

{\i Protocol:}{\i Economic}{\i Impact}{\i Assessment}(Sept. 1998) p. 32.}\par\sa0\sb0\ql {{\*\bkmkstart fn2}{\*\bkmkend fn2}}\cbpat0 \li0 {\field {\*\fldinst HYPERLINK \\l "srcfn2"}{\fldrslt\ul\cf2 \cf13

\f12 \fs14 {\ul \cf132}}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {\f12 \fs14 \uc1\u8216\'6D Coming Together--The Future\uc1\u8217\'6D in {\i The}{\i Clifford}{\i Chance}{\i Millennium}{

\i Lectures,}B. S. Markesinis (ed) (Hart Publishing, 2000) at p. 239.}\par\sa0\sb0\ql {{\*\bkmkstart fn3}{\*\bkmkend fn3}}\cbpat0 \li0 {\field {\*\fldinst HYPERLINK \\l "srcfn3"}{\fldrslt\ul\cf2 \cf13\f12 \fs14 {\ul \cf133}}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {\f12 \fs14 {\i Comparative}{

\i Law}(Cambridge University Press, 1949), pp. 157-8. It is not without interest thatin the index to the English edition of a leading French textbook on international commercial arbitration the entry under \uc1\u8216\'6D {\i Kompetenz-Kompetenz}\uc1\u8217\'6D reads: \uc1\u8216\'6D see {\i Competence-Competence}\uc1\u8217\'6D .}\par\sa0\sb0\ql {{\*\bkmkstart fn4}{\*\bkmkend fn4}}\cbpat0 \li0 {\field {\*\fldinst HYPERLINK \\l "srcfn4"}{\fldrslt\ul\cf2 \cf13\f12 \fs14 {\ul \cf13

4}}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {\f12 \fs14 This article is concerned with private commercial law conventions whi

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ch are intended to confer rights and duties within the United Kingdom and thus have to be carried into effect in the UK by legislation. Ratification is invariably deferred until after such legislation in order to avoid the risk of the Billnot being passed, resulting in the UK government being in breach of its international obligations, and takes effect at the same time as the Act comes into force. There are, of course, international treaties which are intended to take effectsolely in international law. These do not require legislation but UK constituti

onal practice as crystallised by the 1924 Ponsonby Rule is to lay before both Houses of Parliament for a period of 21 days after signature and before ratification every treaty which is not intended to be enacted or dealt with under some alternative parliamentary procedure.}\par\sa0\sb0\ql {{\*\bkmkstart fn5}{\*\bkmkend fn5}}\cbpat0 \li0 {\field {\*\fldinst HYPERLINK \\l "srcfn5"}{\fldrslt\ul\cf2 \cf13\f12 \fs14 {\ul \cf135}}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {\f12 \fs14 Hugh S. Pigott, \uc1\u8216\'6D Steps Towards the Harmonisation of Col

lateral Law in Europe\uc1\u8217\'6D (2000) JIBFL 347.}\par\sa0\sb0\ql {{\*\bkmkstart fn6}{\*\bkmkend fn6}}\cbpat0 \li0 {\field {\*\fldinst HYPERLINK \\l "srcfn6"}{\fldrslt\ul\cf2 \cf13\f12 \fs14 {\ul \cf136}}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {\f12 \fs14 \uc1\u8216\'6D The Law: An Engine for Trade\uc1\u8217\'6D , a lecturedelivered at the British Academy on 22 Nov. 2000.}\par\sa0\sb0\ql {{\*\bkmkstart fn7}{\*\bkmkend fn7}}\cbpat0 \li0 {\field {\*\fldinst HYPERLINK \\l "srcfn7"}{\fldrslt\ul\cf2 \cf13

\f12 \fs14 {\ul \cf137}}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {\f12 \fs14 HL Deb 1964-5, vol 264, cols 1175-6.}\par\sa0\sb0\ql {{\*\bkmkstart fn8}{\*\bkmkend fn8}}\cbpat0 \li0 {\field {\*\fldinst HYPERLINK \\l "srcfn8"}{\fldrslt\ul\cf2 \cf13\f12 \fs14 {\ul \cf138}}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {

\f12 \fs14 Ibid.}\par\sa0\sb0\ql {{\*\bkmkstart fn9}{\*\bkmkend fn9}}\cbpat0 \li0 {\field {\*\fldinst HYPERLINK \\l "srcfn9"}{\fldrslt\ul\cf2 \cf13\f12 \fs14 {\ul \cf139}}}\f12 \fs14 . \cbpat0 \sa0 \sb0 \qj {\f12 \fs14 \uc1\u8216\'6D A New Common Law for Europe\uc1\u8217\'6D in {\i The}{\i Clifford}{

\i Chance}{\i Millennium}

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{\i Lectures,}B. S. Markesinis (ed) 27.}\par\sa0\sb0\ql \cbpat0 \fi0 \qc \sa100 \sb120 \li0 \ri0 \sl240\slmult1\li0 \f12 \fs14 2010 Cambridge University Press\par\sa0\sb0\ql \cbpat0 \sa0 \sb0 \li0 \cbpat0 \fi0 \qc \sa120 \sb100 \li0 \ri0

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