Unification and Harmonization of International Trade Laws- Need

to have a new approach.

INTERNAL -II

NAME – Ayush Kumar Singh

PRN – 18010126240
DIVISION – C
EMAIL – 18010126240@symlaw.ac.in
SUBJECT – UNCITRAL Model Code
Introduction

Adoption of an agreed-upon set of norms, standards, or principles for transnational commerce is

referred to as international unification. This was accomplished in international trade by custom,
international practise, or international agreement within the framework of professional
organisations or between governments through an international convention. Whereas
Harmonization brings closer legal provisions or processes between two or more legal systems, or
achieves equivalence. WIPO and GATT are pursuing it with varying degrees of success in the
global trading arena in relation to trade-related intellectual property ("TRIP"). TRIP covers
patents, trademarks, trade- related copyright such as the protection of computer software, trade
secrets and the sui generis protection of semiconductor chips. The harmonisation and unification
project has problems as well, which we shall explore in the essay and indicate the necessity for
the improvement of legislation if feasible.

Analysis

In the following areas, unification has occurred or is in the process of occurring:

1. negotiable instruments,
2. the contract of international sale of goods,
3. the carriage of goods by sea,
4. general average,
5. principles for international commercial contracts,
6. international countertrading,
7. international procurement,
8. electronic data interchange ("EDI"), and
9. unification by the European Union ("EU") and the European Free Trade Association
("EFTA") in relation to jurisdiction and the enforcement of judgments, and
10. unification by the European Union ("EU") and the European Free Trade Association
("EFTA")

Harmonization does not result in a final set of agreed-upon regulations. It directs the
modification of norms, standards, or processes in order to prevent disputes and achieve
equivalent. Harmonization can be achieved by international treaties or through the mandate of a
regional supranational organisation.

The unification and harmonisation endeavour of the last century has been a beneficial method of
fostering comparative study and scholarship, as well as deepening our understanding of
international trade organisations.

Much of the work put towards harmonising these regulations is superfluous, and some of it
results in policies that impede rather than facilitate international trade. These shortcomings are
the result of inherent limits in the process of generating international agreements for national
implementation. The professional community, particularly scholars, has worsened the situation
by focusing incorrectly on what the initiative should deliver. We ought to spend less time

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drafting rules to govern the substantive rights and duties of persons engaged in a transaction, and
more on devising ways to encourage states to facilitate contractual choices made by parties in the
course of transactions and in encouraging states to reveal how they propose to deal with private
disputes arising out of international commerce.

Improving the law

Unification and harmonisation may imply the replacement of superior regulations for those
already in place in particular governments' legal systems. By "better rules," I mean laws that
improve on the status quo in terms of some normative social purpose, such as redistributive
justice or economic well-being. The aims of harmonisation and legal reform intersect here.
However, troubling concerns instantly arise. What separates international and domestic pursuits
of good law? When, in the absence of domestic initiatives, would international law reform
succeed?

There are several options. For starters, tapping from a global pool of legal talent may boost the
number and quality of knowledge available to handle an issue, and greater expertise may lead to
better regulations. Second, a comprehensive examination of the experience of many legal
systems may offer law reformers with more and better facts from which to make conclusions
about which rules function best. These arguments are especially appealing to academic
professionals, who mix apathy with competence and feel that their skills, when properly used,
may enhance the law.'

However, it does not appear clear why international attempts to integrate and harmonise business
law should have any specific benefit owing to the high level of expertise and data accessible to
guide reformers. A purely domestic law reform initiative can also draw on a diverse pool of legal
knowledge and use comparative research to establish the best regulations. One merely has to
consider the numerous efforts undertaken former communist nations should enact new
legislation in favour of a capitalist economy Most international harmonisation initiatives would
be jealous of the assortment of transnational academic expertise and extensive comparative
analyses of legal systems that these programmes engage in.

Efforts to modify the legal systems of many nations, on the other hand, tend to necessitate
individuals who are bilingual, if not multicultural. People working on the project must
communicate with and comprehend one another, which is made easier if translators are not
required. This need reduces the pool of available talent for such initiatives.

A alternative case for law reform via unification is based on the unique challenges raised by
international trade in a world of national legal systems. Collective action difficulties that prevent
individual states from enacting optimum laws may be solved through cooperative rulemaking by
representatives from numerous states. A further example in this work concerns the handling of
foreign claims in a bankruptcy procedure. An ideal system would specify clear and precise
choice-of-law rules to allocate authority to resolve legal claims to the jurisdiction with the
greatest interest in each transaction, and would otherwise discourage discrimination against
foreign claimants, which reduces the overall efficiency of the bankruptcy system. However, in
the absence of inter-state cooperation, each nation has an incentive to enact regulations that, on

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the margin, favour citizens over foreigners in the distribution of the bankrupt's inheritance. They
can accomplish this not only by overtly undervaluing foreign claims, but also by using local law
to unravel contracts or property claims made in a different legal framework. An international
regime that gives every state a stake in a system that removes such discrimination may boost
overall wellbeing.

A final chance for legal change through worldwide harmonisation affects a small but important
subset of instances. It is based on views of political style in a world where national pride still has
a lot of clout. Many nations that had virtually abolished formal market linkages from their
economies have opted, with varied degrees of enthusiasm, to embrace private business over the
previous decade. Most tackle the task with little or no adequate domestic legislation, and would
be better off just appropriating a well-developed foreign body of business regulations, such as
those of New York or England. However logical such a transition may be, few of these emerging
market-oriented countries are confident enough in their national identities to allow a full embrace
of foreign legal systems. Instead, they want to retain a semblance of sovereign equality even as
they struggle to address the requirements created by unique gaps in their legal system. An
international instrument may be the best answer for these governments. It may allow a country in
need of a legal tradition to accept foreign business law while retaining its sovereign dignity and
independence.

Conclusion

There is much to be argued in favour of unification brought about by contractual parties working
on their own initiative within the framework or standards established by a supranational or
regional body. This type of unification is the outcome of tried and true functionality. It gives the
essential flexibility to tailor the rules to the current condition of the market and the level of
protection requested by each contractual party.

One of the drawbacks of unification by convention or law is that the unified provisions are
vulnerable to diverse interpretations in different nations. The structure should incorporate a
revision system. Unification is especially important in the case of negotiable instruments, such as
bills of lading, when notification to the transferee of the applicable regulations is critical.

Finally, disrupting our complacency regarding the unification endeavour should not be
misinterpreted as an attempt to denigrate the serious and vital efforts of individuals involved in
the process. It is crucial to a long-term practical endeavour to develop international law.

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Biblography

https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/17-
06783_ebook.pdf

https://www.nyulawglobal.org/globalex/Unification_Harmonization1.html

https://www.springerprofessional.de/en/international-unification-of-trade-laws/18334780