excerpt from comparative law and its relevance to transnational commercial law

8/2/2019 Excerpt From Comparative Law and Its Relevance to Transnational Commercial Law

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4COMPARATIVELAWAND,ITS

RELEVANCE TO TRANSNATIONALCOMMERCIAL LAW

A. Nature of Comparative Law anda Brief HistoryNarurc of cornpararivc law/\ br icfhis (() f ) ,, "

B. Classification of Legal SystemsTil" tradirion;!] d:miiicll.ioll by bmilyA n issue-b ased classi IiCltion systemC ivil law and common lawIsla mic lawC. Aims of Comparative LawEducation:,! aims of comparative lawPractical uses of com parative bw.Enban(.


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A. Nature of Comparative Law and a Brief HistoryNature of comparative law

4,01 \X1emay begin with a rather simplistic definition of comparative Jaw as [he sys-tematic study of the institutions and rules of at least tWO differem legal systems ona comparative basis. Comparison is the key feature. Merely to examine a foreignlegal system without comparing it with another is not engaging in cornparariv-law. So whilst the examination of foreign laws in order to assist a court in decidingwhich direction its own law should take is.a true exercise in comparative law, thestudy and presentation of evidence of a rule of a particular foreign legal systembecause it is the applicable law under the forum's conflict oflaws rules doesnor initself involve comparative law at all. Indeed, for the court it is an altogether differ-em exercise, because it may involve a dose examination of the detail of the rule offoreign law under consideration, whereas, as we shall sec, reference to foreign lawto assist the court in deciding on the future direction of one of irs own legal ruleslooks more co the underlying policy of the foreign law and its approach to thesolution of a common problem.

4.02 As a subject, comparative law encompasses both the comparative activity itselfand the purposes and methodology of comparison. The phrase 'comparative law'is unfortunate, as it misleadingly suggests a body of extant, substantive law,whereas comparative law is a process of comparison which does not in itself haveany normative contenr. Thar is one of the reasons why it is so difficult to define itin a meaningful way.Legal definitions are notoriously unsarisfacrory and apt to lead to controversieswhich are often barren of result. This, in particular, is {he case when any attemptis made ro define 'Comparative L1W' as law, since the subjccr-mauer, being 11011-existent, is one which defies definition.'

4.03 Yet the result of the comparative law process in the context of transnational cOTIl-mercial law (compararivc commercial law') is rich. Itlies at the very foundationof the transnarional commercial law enterprise. One need look 110 further thanthe consrirurional documents of the principal organizations involved in thedevelopment of substantive transnational commercial law, UNIDROIT andUNCITRALStatute ofUNIDROIT (Internarional Institute for the Unification of Private Law)1940, as amended in 1993Article 1The purposes of the Inrernarional Institute for the Unification of Private Law arc toexamine ways of harmonising and coordinating the private [aw of Srares and of groups of

1 He Guutridgc, Compamlilit Law (2nd edn, Cut Cambridge, 1949)2.

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Sml:es, and to prepare gradually for [he adoption by rhc vnrious Stares of uniform rules ofprivate law.1;) this end the Insriru re shall:

(c ) undertake studies in comparative private law . "

General Assembly of [he United Narions, Resolution 2205 (XXI),17 December 1966T bc G e ne ra l ASJtmh~}' ..Decides to establish a United Nations Commission on Inrernarional Trade Law (here-inafter referred ro as the Commission), which shall have for irs object th e promotion ofrhcprogressive harmonization and unification of the law olirucrnarional trade, in accordancewith [he provisions set fonh in section II below ...8. The Commission shall [urrher the progressive harrnonizarion and unification of thelaw by .. .(e) Collecting and disseminating information on narional legislation and modem legal

developments, including C;L~elaw, in the field of the law of iurernarionslrrade ...A b rief historyComparative law has been a feature in the development of law from rime irnrnc- 4.04morial.The history of law includes a history oflegal borrowing. That process hasbeen described as the reception, export, import, imposition, migration, diffusion,circulation, transfer, assimilation, transplantation, or transposition of ideas, rulesand insrirurions, depending on the.objectives of (he aurhor.? Thus, the Code ofHarnrnurabi, daring back to approximately] 914 HC,3 drew on the laws of vari-ous Sumerian cities andother Near EaS[ sources. In Ancient Greece, Plato's Laurscompared.the laws ofrhe Greek City Stares. The Twelve Tables of Roman Law aresaid to have been compiled between 450 and. 451 Be by a group of commission-ers after a visit toAthens and a study of its laws, particularly those of Solon. In [heMiddle Ages, (he Rolls of Oleron, embodying rules of maritime law adopted bythe Commune of Oleron, were applied widely throughout continental Europeand in England.4 Turning to more modem rimes, many consider that the g rea reighteenth century French political thinker Montesquieu has a claim to be thefounder of comparative law,5 while the law reform movement of early nineteenthcentury England, powerfully led. byjeremy Bentham, and later by John Austin,dearly perceived (he advantages [hat can How from a comparative approach,

2 lkmanl S Jackson, 'E volurion and Forcign Influence in Ancient Law' l6 Am J Cornp L :F2(I96B). S ec a ls u: Alan \V;llSon. Le .g l1 ! Transplants: an Ilpprol1d, t o mmpl 1J l1 1 hy LUI! (2nd cdn, U ofGeorgia Press,London 1993).

3 AS Diamond, Primitu: Laio (2nd cdn, \X!;HlS, London, 1950) 22. 4 Scepara I.l6.s S ee , I'( )I'e xample , Gu ne rid ge , Compnra t i ucLaur (Znd cdn, CUP 1946) 1 2 ; O rro Kahn-Frcund,

'On Use, and Misuses ofCompararivc L1W' (] 97i) 37 MLR 1.6.

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Nevertheless, the 'universalist' view oflaw has exercised a marked influcnce on rhe devel-opment of modern comparative law. Itformed the starring point for [he wave: of unihca-do 11M y enthusiasm wbich swept Europe in (he years fdJowing the war of J 914-1918, andit still provides a motive for much of rhc comparative study and research which is carriedour at [he present rime It" also finds expression in Article 38 of the Smrutc of rheIn ternalional C ourt of justice, w hich directs rhe COlin to apply , among Other rules, 'rhcgeneral principles oilaw recognized by civilized nations', J I has been suggesred, moreover,that a search for 'common principles' conducted on analytical lines may result in .1 solu-tion Of;l problem which is created in (he: domain of private internarional law by thevarying inrcrprerarion given in difFen:nrjurisdictions [Q the same legal concept, a problemwhich is known as that o('Qualificl!:ion', 'Classification' or 'Characcerisauoo'iIc is, how-ever, doubtful whether the universalist theory ca n be regarded as more than a piousaspiration founded, parrlv, on the need for collaboraricn between the nations in (he legalaswdl as in orhcr spheres. bur, in themain, on a bdicfin rhcessenria] unity of mankind .lfrhis view of (he marrer is pm to a rest in [he conditions oievcryday life, it is apr to breakagainst the obstacles created by the differences in national mcnralirv, by habits deeplyrooted in tradition, and by variations in the structure of legal insrirutions and kgaltechnique from country co country.Although {he 'universalist' theory may still be invoked in aid of projects for the uniiica-rion of private law, it is no longer regarded as explaining the necessity f()r rhe crnploymcntof rhc comparative method. At rhc present day (he tendency is co stress rhe value of rhcmethod by indicating the difJercIH purposes which m;lY be served by its employment,and this has led (0 various atTempts to classify comparat ive law in accordance wirh theobjects which can be attained by irs utilisation.The International Academy of Comparative Law was founded in The Hague 4.06in 1924, and irs international Congresses, w hich began in J 932 , arc:now held indifferent countries every Four years. Many countries now have Insritures of com-parative law, and numerous Journals of comparative law arc published by theInstitutes and by university law schools. Comparative law has come of age, thoughit has to be said chat interest in ic as a subject of undergraduate scudy remainslimited. Yet, rhe work of harmonization o r law, and in particular of commercialbw, could nor be undertaken without" comparative law studies.

B. Classification of Legal SystemsThe rraditional classification by familyScholars have long sought fCll:a rational taxonomy onega! sYStems. The accepted 4.07method at the gcnerallevd is to divide syStems into groups known as f .1J11ij ies. The

L1'V' (1975) 91 LQR 217 fE For lh" scene in America and the Germanic irnpacr on academe andintellectual t.hinking SC(:, among others. r.13rhias Reimann ltd, and conrr, i TJy Rm 'pr io ll 0/Canrincnialldcns in th e Com mOll L


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problem is to know what criteria to apply in making the division. The underlyingconcept, as described by Zweigerr and 'KCitl, is that oflegal style.' By this is meant'that congeries of characteristics which mark o t T one legal system from another.Systems possessing similar characteristics are then allocated to a particular 1~1n l i ly .Among the characteristics considered as principal elements of a legal style arc: his-torical development, mode oflegal thinking, distinctive legal institutions (such asthe crust in the common law, and rhe docrrinc of cause in the civil law), the sourcesoflaw recognized by a legal system, and the ideology of a.sysrcm, for example,whether ir is a socialist system, in which law is subordinate to political consider-ations and the rights of the individual to those of the community, ora capitalistsystem, characterized by adherence to the rule of law, a free market economy andthe protection of individual rights, including rights of property. Roman law exer-cised an influence on all European legal systems, though much less so in England{han elsewhere, because ofrhe practice orientation and vigour of the common law.Hence, the le gal systems of continental Europe together constitute th e Romanisifamily, though a number of scholars consider that Germany and the countriesadopting the German civil code U3 iil ge d ic h es Ge s cz th u d : orBG!) belong to a dis-tinct Germanic family because of the marked differences in approach between theFrench code c iv il and the German BG B. Both are treated as civil law systems. 'fhccommon law family consists of presem and mOSI former members of the BritishCommonwealth, including Canada and th e United SLares,s though in some ofthese countries, notably th e countries of southern Africa, the legal system is amixture of common law and Roman-Dutch law. The Scandinavian countries aregenerally considered to constiture a distinct legal family, so roo are socialist coun-rries, such as China and formerly Russia and its satellite countries. Other group-ings are the i s lamic family and Hindu law, the latter applying mainly in India,Finally, there are unclassified legal systems, some of which, such as rhe SourhAfrictll and Israeli sysrems. are sometimes described as hybrid systems.

4.08 Classifications of this kind are not without their advantages, at least as a starringpoint for dealing with the ever-growing number of stare and supra~sta[e legalcultures. But their [imitations must also be noted, however brietiy, First, they arepredominantly based on private law, becoming fashionable at the rime of creationor modernization of Civil Codes, and largely ignore public Jaw, a subject whichhas acquired a much greater inilucnce from the beginning of rhe second halfofthetwentieth ccntury. Secondly, they ignore the ofien significant shifr of some legal

7 Konrad Zweigert and Hcin ](Mz, An Imroduaion to Comparatn: Lai (Tonv \Vtir (If)) !.3rd edn,Clarendon Pr(:8$, Oxford, 19(8) 676: A more recent and sccrningly broader concept is that: oriega!cuiru rc, See below; pan '1 A ').

B Apart from Q,~ebec in Canada and Louisiana in the United Statts, both of which are civil Jawsystems. The' United Stares, [hough initially deriving irs jurisprudence from England, has moved in;1 substanrially dilTerem direction and is therefore a distinct subset of common law jurisdicrions. Thesame is lTUC to a lesser extern of C anada and 1\I1Slr .1]13 .

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systems from their original SOurces w;vards different systems. 'T o give bur tWOinstances, systems such as the Dutch and the Portuguese, traditionally under the "umbrella of French law, have in more recenr rimes made significant switchestowards German law, while other systems, such as (he Italian, which are trad-itionally included in the Romanisric family, have in some branches (e.g. civil pro-cedure) demonstrated a strong leaning towards Germanic thought, whereas inochers (e.g. commerciallaw) [hey are showing themselves increasingly willing toseek guidance from the common law.Thirdly, yet another group of systems, originally highly dependent on Roman and 4.09French law, have re-oriented themselves in some subjects towards German lawwhereas in others they have come under the influence of American law. Brazil pro-vides a good example. In { his third group of systems one might include a subcar-egory of systems which have remained hirhful to their progenirors in some areasof the law bur . look for inspiration towards a new source of ideas. The nuanceddifferences of the practice of the South African Supreme Court and the SouthAfrican Constirutional Court may provide illustrations worth further examination.In the light of the above, it is not surprising (hat some authors have felt obliged 4.10to develop their own classifications, more tailor-made to the exigencies of theirown subjects. Professor Philip Wood, a former practising lawyer and one of theworld's leading experts in inrernational financial law, is one who has done justthat. His own classifications of the financial laws ofrhe world are based on his longexperience of international banking and business transactions, Wood's primaryfocus is on the general style of a jurisdiction, and in particular, on the followingcharacteristics: the emphasis on predictability; the degree of liberalism in commercial law; [he degree of crirninalizarion of commercial law; the attitude to 'big pocket' liability; attitudes to dispute resolution: and, policies on hard Ln\1, including insolvency law, properly and secured transac-tion rights, and soft law, such as regulatory guidelines and administrative indi-cations lacking legal force bur nevertheless compelling in their impacr.?

Philip Wood, Comparatiue Financial L aw (Sweet &.Maxwell, London, 1995), para 3-2(footnotes to the table have been added but are taken from the author's text)One lllay attempt a broad classification of financial law of jurisdictions inro families ofthe law on the basis of the rests discussed in the previous chapter and on rhe basis of orher

9 Ph il ip \ \i ood , Compa ra tiv e F in an cia l L .z U!(Swec: &.Maxwe ll, L on do n, 1 ')95) p3ras 2 -1 () 1 1 : Nottrh ar th is w ork waspublished in 1 995, and som e changts Ill;!? h av e ta ke n p la ce si f le e p ub lic ario n -.

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criteria which arc. nored in more detail in subsequent chapters. This groupi'?gis not agrading between good and bad. There are no moral implications whatsoever: (he classifi-cation isneurral on ethics. The difh~re[Jcesdo not arise out of moral differences bctwc(~npeoples. Further, the current legal culture of a jurisdiction Can be, and ofren is, quite dif-ferenr from the bare legal rules, Nor is rill: classification a guide as ro which stares have astable legal and judicial system with high standards and those which do nor. Efficienrcommercial law systems arc very expensive (0 run and many countries ar c more preoccu-p ied w ith survival than legal refinement. Som e legal sy stem s in a grouping are stagnam,while others in that group arc on th e move ...The classification is renrarivc. It has nor been possible to check the position on all issues inall states and the research required to do so would be stupendous. Hence, some jurisdic-dons may be wrongly categorised.Subject 10 these qualifications, the suggested classification is as follows:

GROUP CLASS JUR ISDICTIONS GLOBALPOPULATION1 A 'Jr ';ldiriollal English lC r } 1 , !6179 1 )IB American common b\\,112 Mixed Roman/common lawl3 153 Gerl11;lnic and Scandinav ian H 13,1 Mixed Franco-Lann/Lcrmanic!" 135 Traditional Franco-Larin!" 76() Emergingjurisdictions'? 18

Islamic jurisdicrions'" 1 18 Unal lo cH e d ju ri sd ic ti on s" 1 : 3

1797m (53,4%)2 43m (,1 .5'} b)360m (6.7 1}i,j279nl (5.29'h)

9B2m ( IB .3 'lb )1488m (27.7')1,)

108m (2"b)116m (2.2'};))

An issue-based classification system4,11 The value of Wood's approach is (hat his classification by legal family in a general

sense is followed by second-order groupings according to the particular issue1 0 England; Australia: Canada (except QUdKC) ; India; New ZC2.!anJ; H ong Kong; \hbysia;

Singapore. Many other small tcrrirories.11 A ll U S states save Louisiana, LOgclhcr w ith ,Liberia and a few aHiliared island territories.1 < T he larrcr if federal sy ste ms, fo r instance. i f Aus t ra l ia , Canada, and the U nited Sr;\[6, e;lC h

COUll( '15 one.13 Japan; Korea; the Southern A frica group (fi)l' example, South A frica , Botsw ana, and

Zimbabwe); Scotland; Quebec; S ri L a nk a: Liechtenstein; the Channel Island group, t.g. Jersey ,gGermany; Netherlands and its re la te d sta te s (fo r example, In do nesia, A ru ba); P olan d; F in lan d;Norway; Sweden; Switzerland: Taiwau.1 , :\uslria; C zech R ep ub lic, S lo vak R ep ub lic; Denmark; Hungary : Italy; Thailand; Tiirkcy,16 Belgium; Egyp!; France; Greece; Luxembourg; Portugal: Spain; most Larin American countries;

most: former French, Belgium, and POfIUgUC$C possessions in Atrica, rhe Caribbean, and lndochin1 1 These arc rapidly modernizing their laws, rhus grouping is premature: China; Russia;

Vietnam: the former Yugoslav Sr;m:s; the three Bahic Srares: some olrhc Easrcrn European membersof the rorm cr USSR .1B MOST: W(\~TCm Arabian Slates; Afghanistan; A~i;U1 members of the t{mlle.f USSR, lin instanceKll~lkhs[an, Tajikisran, Uzbekistan.

19 Anrarcrica jurisdictions: Bhuran: Cambodia: Eritrea; Ethiopia; North K()[t'~L Laos, Maldives,N


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Chapter 4: Comparative Law fwd Its RL'lCUIlI1({' to Transnational Commercia! Lauiunder discussion. For example, jurisdictions arc idcnrihed whose laws embodyrhe 'false wealth' principle by which assets in the apparent or reputed ownership ofthe debtor are rreared as his assets so as to be available tocreditors upon his insolv-ency, the real owner being expropriated because he was [he secret owner. Theimpact of the principle varies, but is typically re fle cte d in r ule s which deny efficacyto non-possessory security interests, trusts, assignmenrs of debts not regist.ered ornotified to th e debtors, or ocher invisible inrcrcsts.i? Similarly, jurisdictions areclassified according to the degree of liberality shown towards the recognition ofdifferent [ypes of security interest, properry rights, insolvency set-off, and thelike. Such an approach moves below the surface of a general classification to anissue-based classification, which docs nor necessarily correlate with the generaltaxonomy, and I S of particular value to chose advising on international financialtransactions.Civil law and common lawThe tWO legal families most often contrasted are the civil law" and the common 4.12law. These two families are far from homogeneous: there arc significant differ-ences between common law systems, and even more between civil law systems.Nevertheless, there are certain contrasts that can be made between the two Iam-Hies as a whole. Certain supposed distinctions can be largely consigned to history.For example, it is said that the civil law system is deductive, reasoning from gen-eral principle IO specificcase, whereas th e common law is inductive, exrracring thegeneral principle lrorn specific cases, and that the common law is fashioned bypractice, the civil law by principle. Bur these distinctions are of much less signifi-cance in modern law, The common law has concepts and principles as highlydeveloped as (he civil law, and while it may be true rhar common law judges, instriving to arrive at a just result, are strongly influenced by the faers of a case, theynevertheless render their decisions in accordance with settled principles and rules.On the other hand, it is also the case that the common law, being uncodihcd, is 4.13much less accessible to the citizen than, say; the French (ode civii.'2 Moreover,whereas the cod e c iu il has proved a highly exportable product, spreading the influ-ence of France and French law around rhe world, the English have nothing inexportable form, nor even an equivalent of the American Uniform CommercialCode.

20 \X i( )od (n < ) ) p ara s 2 -2 7 ff .;1 1 The civil law is Roman law, and particularly justinian's Corpusjuris Civilis, as received and

developed in E urope in [he M iddle Ages.~2 Though rhis advalH.ag


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Par t J : Gmend Principles4.14 There is also a diHerence in (he approach to judicial decisions. As Merryman PUt

it , common law judges arc problem solvers rather than theoreticians, whereas thescientific, formal approach of [he civil law rends ro impede effective problem solv-ingY This is not (0say that the common law is superior to the civil law-e-on thecontrary, many of irs principles have been influenced by the civil !aw24-merelythat it is different.

4.15 There are other points of distinction between the two legal families. The commonlaw gives a wide measure of freedom [0the parties to a transaction, whether inrelation to contractual rights and.obligarions, Of in relation to the organization ofproperty rights. The civil law adopts a more paternalistic, fo rma l a ttitu de whichimposes constraints on what can be done, For example, an assignment: may rakeeffect in equity at common law w ithout any formalities, whilst in the civil law, for-mal requirements are imposed [0prevent collusive arrangements, for instance inamedaring an assignment. Civil law systems tend to require specificity in the ere-arion of property rights, and would, thus, view with disfavour an all-assets secur-ity interest or a transfer of unparticularized future propen)'. Common law systemsrend ro be creditor oriented, civil law systems debtor oriented. The trust is a con-cepr peculiar ro the common law, though it has analogues in the civil law designedto protect (he beneficiary from the consequences of a fiduciary's insolvency, with-our, however, necessarily treating the beneficiary as having a full-blooded prop-erry right.

4.16 It is fair to say that the common law laissez-fain: approach is more receptive tomodern commercial transactions than thar of the civil law, whilst the latter is morerigorously sysrcmaticand usually more protective of the rights of the weaker pan)'.Bur (here are other important lCtors, extraneous ro law, which have contributedto the dominant position acquired by the commercial law of the common lawworld: th e importance of the English language in the inrernarional world of trade;the dominance of the Anglo-American world ofrinancc, and the emergence of rhenew multi-national law firms which, [hough internationally sraffed, arc struc-rured in an Anglo-American way and dominate a substantial pan of the legal busi-ness related to trade and finance.

Z3 John H M errym an, T he Civil la tu Tradition: An [nrroduction to t i l < ' L t g ,: i ,~ ys fem -' o(W'm


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Ch ap te r 4 :C 'omp ara Iiv c L aw Itnti I t s Re lcuancc to T ra ns na tio na l C omm erc ia l L a ioIslamic lawMost of the legal systems that feature in classifications are [he systems of a Sure 4.17and arc thus rerrirory-bascd. By contrast, Islamic Law, the Sbari 'a, which governsrh e lives of hundreds of millions of Muslims, is distinct in that it is nor a territoriallaw, bur a personal law, and, moreover, one which, deriving from God, i s immutablein iIS precepts, [hough nonetheless susceptible to diverse in te rp re ta tio ns. Islam iclaw had little irn paCT in modern rimes until the overthrow of [he Shah of Iran,which led fOits resurgence rhroughout the Muslim world. This broughr in itswake a distinctive f()fJn of internal comparative law which involved testing thevalidity oflegislation against [he tenets of the Sharif I.Again, however, an impor-tant caveat must be made. For even in systems where Sbari 'a law applies, it rendsto affect principally what one might describe as hunily law matters, leaving otherpans of rhe law of these counrries-s-rypically contract and rorr-m retain a strongEuropean, French or English origin.Chibli MaHar, 'Comparative Law an d the Islamic (Middle Eastern) Legal Culture'in Reinhard Zimmermann and Mathias Reimann (eds), Tb Oxford HandbookofComp'Jrati1!e Law (OUP, Oxford, 2006)In tlCt, Islamic J a w is only a small, discrete component of a larger frame of reference withinIslam ic culture . . . Thar said, Is lam ic law is in cre as in gly all-encompassing and , in j~l(:r, isequivaleru ro the rule of law in th e modern start. Every ; lspeCt of life i s regulated by(Islamic) law . ..Besides constituting a special type of nomocracy and operating at: a multi-level order insociety Is lamic law is also unique in that it represents a personal, rather [han ;1 territorialsystem of l aw. It thus stands in sharp COJHfa5! [() the posr- \Xicsrphalian order that dorn-inares the rest 0 f til e wo rid. This characteristic, which is typical of any rel igi0 llS-based socialorder, is also typically Middle Eastern, The application of law to ;1 person on rhe basis ofreligious affiliation is an increasingly important source of tension in the world order, onethat is based on personal, or c om rnu nira rian , la w, as opposed to [he territorial law [hatdominates [he rest of (he world. This conrrasr is possibly [he most pervasive and divisiveissue that arises when regarding the diHt:rc:nr legal systems and cultures at play from acomparative perspective.From a historical perspective, Islamic law consistently elicits an array of autonomousreferences. Looking at irs uninterrupted flow since [he Muslim revelation in the 7dlCentury, rhc sliari'a ;lppears as rhc common law in the region and beyond, reachingMauritania and \'(Iesr Africa OJ ) its western fringes and Indonesia to the cast. Beyond irstextual differences wid} other major legal systems, the sbari 'a is increasingly studied forits immense diversity across history In rhe cady period, the Qu'ranic [ext, the Ihldith,f{aphorisms arrribured !O (he Prophet) and the sim-nwgh,J;:oi Iirerarure (the stra consists ofbiographical aCCOLlJ)(S of the Prophet, the lIwghtlzi of the early conquests), were aJl elab-orated upon in Jl lany leg:11genres after rhe dearh of rhe Prophet Muhammed (d 6.32 CL).},dded to this legacy were the classical books of doctrine ((iqh), the customary rules. thecase.law available from extant archival COLIn'S, (he Iircrarure on the an of judgments, thefi1fwlu (individual legal opinions), formularies, deeds and COHn'aClS , the srarure law(qiJium) since rlse 15th century;


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Part J: Genera l Pr inc ip le ssame tasks is gone forever, along with the formal community of law, Legal science hasbeen degraded ro provincial jurisprudence, and the boundaries oflegal science coincidewith political boundaries. How hurniliaring and unworthy such form for a science! Burit is for science alone to transcend these boundaries and to preserve for the furure irs oldcharacter oftransnarionaliry in the new form given by comparative jurisprudence. Thiswill carry differcnr methods, a broader outlook, a judgment more mature, and a greaterfreedom in the treatment of materials, and therefore the :lpparent loss will be turnedeffectively to its true advantage by raising science to higher levelsof scholarly PUl"SUir.31

Konrad Zweigerr and Hein Korz, All I ntro du c tio n to Comparatioe Imp(3rd edn, rransl, Tony Weir, Clarendon Press, Oxford, 1998) 15The primary aim of comparative law; as of al l sciences, is knowledge, If one accepts thatlegal science includes nor only the techniques of interpreting rile texts, principles, rulesand standards of a national system, but also the discovery of models for preventing orresolving social conliicrs, then it is dear that the method of comparative law can providea much richer range ofrnodel solutions Ih;11I a legal science devoted to a single nation,simply because the different systems of the world can offer a greater variety of solutions(han could be thought up in a lifetime by even the most imaginative jurist who was cor-ralled in his own system. Comparative law is an 'ecole de verite' which extends andenriches rhe 'supply of solutions' (ZITELMANN) and offers the scholar of critical cap-acity the opportunity offinding the 'better solution' for his rime and place.

4.22 These obvious advantages of comparison have not appealed to everyone, espe-cially to those who see in the study and possible use of foreign law an opportunityfor a judge, jurist, or legislator to 'cherry pick' ideas which simply reinforce hisown value preferences. This mistrust of foreign law has been particularly strong inthe United Stares during the last two decades, when much ink has been spilt overthe appropriateness of using foreign law to frustrate the internal democraticprocess. Space does not permit us to discuss, even briefly, these American debatesand the literature ro which rhey have given rise,32 bur two observations are not ourof place. The first is that in the USA this voluminous literature has shifred muchof the debate about the study of foreign law from private law to public law,Secondly; this has made it even more necessary to examine and discuss the legalrules shaped by the COLlrtS against the existing political realities. This tendency tostudy law in conjunction with politics, economics, sociology etc, referred togenerically in rhe USA under the heading 'Law and .. .', can borh provide a deeperunderstanding of the Iink between legal rules and [he societies in which they existand help show some of the potential difficuhies-real or exaggerated-in anyattempt at legal borrowing or transplants.

11 Extrac.tedfrom Konrad Zwtigert and Kurt Sidu, './hering'slntlucncc on the Developmentofthe Comparative Legal Method' 1')Arn] Comp L215, 21.8 (l ')7l). Seebelow

32 For a recenr comparative surv(..'}'se e Sir Basil Markcsinis and jiirge Fcdrke, FIJrt!I:gn L a U ! inNational Courts:A New Source of Inspiration? (2006, VCL Press London/Rourlcdgc-CavcndishPress Abingdon).

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Chapter 4: CompamritJc L aw and Its Relevance to Transnnrional Commercia! L awPractical uses of comparative law\\!hiJe the acquisition of knowledge for its own sake is the essence of academic 4.23activity, comparative law is of great practical imporrance.P Indeed, for Zweigerrand his followers, comparisons are made not fo r their intrinsic interest bur as tools(0be pm towork.Konrad Zweigerr and Kurt Siehr, 'jhering's Influence on the Development ofComparative Legal Method' 19 Am J Cornp L 215,220-2 (1971)1. Modern legal comparison is ouical u : its attitude. The cornparatisr is nor interested in(he differences Or similarities o( various lcg:rl orders merely as bcrs, bur in the firness, thepracricabiliry, the justice, and the w/~), of legal solutions ro given problem s, The meredescription of a certain legal order rnighr be interesting and illuminating; however, such'D:m:cignlegal data' are nor comparative law. 'Iruc, comparative method can pur the tre~lS-ure chest of foreign experience co good usc, bur [his docs not ger ro [he essence of legalcomparison, which is the critical exploration of the usefulness of(oreign solutions (or [heneeds of domes ric or inrernarionalrule-making. Moreover, comparative law is nor amuseum of foreign legal systems. Its dcrerminanr fearure with respeC( 10 policy choicesand critiques is related to Jhering's abhorrence for antiquarianism ...2. Legal comparison is ul1t iogmmit . In [his respecr we mean [he following: It' is the ble ofevery legal order to sec its principles and guiding rules turn eventually into the rigidiry ofdogmas. This applies equally to the codified systems and ro the unwritten common law,These dOgl1l35 may acquire such ;1weight of their own rhar they will obfuscate and evendistort the views of scholars and practitioners in finding better solutions ... Thus, thelegal compararist turns a skeptical eye towards dogmas, AS;l consequence, funcrionallegalcomparison discards in its investigations any provincial, dogmatically tainted nationallegal hngwlge, and endeavors to use notions which arc free oLmy kind of value-judgmentand are gained through (he investigation of sociological classification. As a legal socioio-gis(, Jhering was again a pioneer in this field.3. Finally ..=ro borrow a word from jhcring-c-cornpararive l(cgal method is realistic. It isrealistic in covering in irs investigations not merely rhe domains of kg islarion, adjudica-rion, and doctrine bur 'all the real motives which rule the world: the ethical, the psycho-logical, the economic [and] [hose of icgislarive policy.'There is, ofcourse, an obvious link between legal education and practical application. 4.24

Reinhard Zimmermann, 'Comparative Law and the Europeanizarion of Private Law'in Reinhard Zimmermann and Mathias Reimann (cds], The 040rd Handbook ofComparatioe Law (OUP, Oxford, 2006)It is widely accepted roday char the Europeani7~lion of private law decisively depends ona Europeanization of (he legaJ training provided in 1 1 ( : various universiries rhroughour

33 It may be notedarrhis poinr rh.u rbe use ofh)rtign law by (he bWYCH and judges Or'l parricu-lar nadonal kgal $yS[(~m is nor easy and,;\$ O[1t anther 1];),1 pur ir, if requires careful 'pacbging' romake rht foreign ideas useable. This point is discussed at greaT lcngth by Sir Basil Markcsinis inm~l1r of hisworks ..most recently in CompmmiNLml! in the Courtroom and thc Classroom (HanPubl is hi ng , Ox fo rd , 2 0 0 3 J , ell r.,3 .

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Part I: GeneralPrinciplesEurope. For ifsrudcnts continue to be raughr rhe niceties of their n31)OnaJ legal systemswirhour being made to appreciate the extent 1 "0 which the relevant doctrines, or case J a w ,constitute idiosyncracies explicable only as a matter of hisrorical accident, Or misundcr-standing, rarhcr [han rational design, and without being made to consider how else alegal problem m:ly be solved, a national particularization of1cg.ll scholarship that rakes[he mysteries of the owner-possessor relationship ( 987 ffBGB) or the abracadabra ofconditions, warranties. and intermediate terms {i'lT granted, threatens to imprint irselfonthe next generation of lawyers. Europeanization of the leg;ll training, therefore, requires(11


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Chaple t 4: C om paratiu e [au .! and Its Re!e l/t1 1l('c to Transnat ional Commerc ia l L . lUJin fo rm atio n abo ut th e su ccesses o r J~ lilu res o f th e d ifferen t p ossibilities laren r in th e rex i,I r m a ke s rh e in te rp re te r aware o f lin ks b etw ee n a so lu tio n to an in terpretativ e pro blem h eor she fa ce s a nd other legal problems. Comparative law se rv es as an experienced friend.OfCOllfSC, judges have no obligation ro resort to comparative law, and even when theydo , rhe 6nal ad jud ication m ust alw ay s be 'local' . . . C o m p;lra riv e law docs nor prov ide ananswerto a specific problem troubling [he judge; rhejudge consults comparat ive law at ahigher level of abstraction, in order [0expand h is or her interpretive h oriz on s. J ud ge ssh ou ld be carefu l, how ever, no t to le t in te lle ctu al cu rio sity le ad th em to im irarear [h e co stof self-denial. The pmpose ofconsulting compararivelaw i s ro unders tand the local rextbenet, The comparison musrnorinrerfcre with rhe nonnative harmony of local law.This disringuished judge returned to [he t heme in his most recent publication, in 4.27which he referred ro the widespread usc of comparative law by Israeli courts andrhose of man)' orher jurisdictions, whilst at rhe same expressing regret rhar [hesame approach was nor adopted by the United Stares Supreme Court.Aharon Barak, TheJudge in a Democracy, Princeton University Press, Princeton,2006),202-433aThe use of comparat ive law fu r rhc development of rhe common law and the interpretationonega) t ex ts i s d e te rmined by t he t rad it io n of th e le ga l s y stem . I sr ae li law, fix example, makesextensive use of comparative law, \x!h(~n Israeli courts encounter all important legal prob-lem , th ey fre < Ju en rly e xam in c fo re ig n law. Ref ere nc e ro U n ite d Starts law, Unite d K in gd omlaw, C an ad ian law , an d A ustralien law is co mm on place. T ho se w ith lin gu istic ability ;lhorefer to Conrinenral law, and som etim es w e usc English rranslarions of Continental (mainlyG erm an , F rench and Italian ) kgallirerallre.I I I c ou ntrie s o f rh c B ritish C ornm onwe alrh , th ere is m u ch cm ss-fe ru lisa rio n. E a ch su ch n atio nrefers to the U nited K ingdom case law , rh e U nited K in gd om ju dges rcter to Comrncnwcal thcase law, and C ommonw ealth judges in tu rn refer toea ch o th er's c ase J aw .T he S up rem e C ou rtof C aD ;1 (h is particu larly n otew orth y fo r ir s frequent a nd Iru iu ul usc of co m pararivc law ,As such, Canadian law serves asa source ofinspir;Hion j()r many uJlJnrrics around the world.The generous use of cornpararivc law can be found in the opin ions of the Sourh AfricanC on stitu tio nal C ou rt. In S ou rh A frica 's C on stiru rio n, it is ex plicitly d eterm in ed [hat:

\X!hcn in rcrprcring [he Bill of R ights, a COUf!', tribu nal, o r ic)rum-(a) must promote the values rhar underline all open and democratic socicry based on

hum an d ign ilY , equality and freedom ;(b) must.consider intcmarional Iaw:(c) m ay consider fo reign Jaw .Rcgrcrrably, until very recenrly rhe United Srares Supreme Court has made link use ofcomparative law. Many democratic countries draw inspiration from th e United StatesSuprem(~ Courr, particularly in its in rerprerario n o f the United S t ar e s Con s ri ru r ion . B yconrrasr, some J ustic es o f 1 ' 1 1 ( : U nited S tates S uprem e Coun do nor cite foreign else lawin [heir judgm ents. They flil [(J m ake usc of an im portan t sourc of inspiration, one rha:enriches legal thinking, m akes law m ore creative, and strengthens [h e d em ocratic lies an dfoundations o f d iffe re nt leg al sy stem s,

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.33;; ) 2006 Princeton University Press. Reprinted by permission of Princeton Un ivc[sir},Press.


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Part J: G 'mend Prin cip le sUpdating ojna tiona l 1e . .' {i1 lj uri sprudencc

4.28 A second objective is to bring specific rules evolved in nationaljurisprudence intoline with modern thinking. If other jurisdictions have found better solutions to acommon problem than those formulated by courts in one's own country, thenwhy not adopt rhem? Lord Mansfield, the founder of Eng 1ish commercial law, wasequally at home in the civil law and the common law, and frequently importedcivil law concepts into his judgmclHs.

4.29 A good modern example is furnished by the characrcrisrically vivid judgmenr ofone ofEn glan d's greatest judges, Lord Denning, in a GISe concerning (he scope ofsovereign immunity, English law had traditionally adopted a principle ofabsolureimmunity, while in other jurisdictions a distinction had been drawn between actsof a state done in exercise of its sovereign power and commercial activity, only [heformer attracting sovereign immuni ry , The question the English Court of Appealhad to decide was whether to throw over the traditional English law approach andadopt the distinction [hat had developed elsewhere.Trendtcx linding Corp I! Cmtrd/ Bank ofNigeri.!l f 1977] QB 529, CA Lord DenningMR,555-7In [he ] ; 1 $ 1 50 years there has been a complete transform arion in the functions of a sever-eign state, Nearly every country now engages in commercial activities. IIhas irs depart-ments of stare-s-creates irs own legal cnrirics-c-which go into (he market places of theworld. They charter ships. They bu y comrnodiries, They issue letters of credit. This [T,1llS-(ormation has changed the rules of inrcrnarional law relating to sovereign immunity.1\iany countries have now departed from the rule of absolute immunity. So many havedeparted from it rhar it can no longer be considered a rule of inrernarional [aw, It has beenreplaced by a doctrine of restrictive immunity. This doctrine gives immunity to acrs of agovernmemal nature, described in Larin ,IS jure imperii, bur no imrnuniry to aCTS of acommercial nature, jure gesrionis. In 1951 Sir Hersch Laurcrpachr showed that, even atrhar dare, many European countries had abandoned the doctrine of ab so lu te immu nityand adopted thar of rcsrricrivc im muuiry -s-scc his important article, The Problem ofJurisdictional Immunities of Foreign S[3t('/ in T he B ritis h ]-('Ill' Boo;" 4Jml'rI1t11i{)fwi Laio,1951, vol 28, pp 220-272. Since that dare there have been important conversions to [hesame view. Grear impetus was given to it in 1952 in the famous 'Tate' letter' in the UnitedStares. Many countries have !lOW adoprcd it . \X!e have been given a valuable collection ofrecent decisions in which the COUftS of Belgium, Holland, [he German Federal Republic,the United Stare, of America and others have abandoned absolute immunity and gr.uncdonly restrictive immunity. Most aurhorirarive of all is (he opinion of rhc Supreme Court'of the United Stares in A ((i'fd D UlIh iI! ofL ondM Inc I! R ep u bl ic o fC u h a. It was delivered onJ\/by 24, 1


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Chapter 4: Comparatiue LttUJ and I ts R ele vance to Transnat ional Cf)mmeJ"( '1~11DiU}proprietary actions. This has been [he official policy of our government since [hatrime, as the attached letter of November 15, 1975, confirms ... 'Such adjudicationsare consistent with inrernarional law on sovereign immunity'.

To [his I would add the European Convention 011 Stare Immunity (Bask, 1')72), Article 4,paragraph 1, which has been signed by most of the European countries ..A re u re m /()liow iik elJ .! iJ e!Seeing this great cloud of witnesses, Iwould ask: is there not here sufficient evidence toshow that th e ru le :of inrcrnarional law has changed? \ ' , :Thatmore is needed? Are we c o wa ituntil every


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- - - - - - - - - - - - - - - - - - - - - - - - - ~Part I:Genera l Princip le s

setting up separate legal entities), and it arises properly within the rerrirorial juris-diction of our courts, there is no ground for graming immunity.recently re-stated it in I lJili-Europt Tapioca Service L u i 1. 1 Gooernmcnt of Pakis tan,

D i re c to ra te o jA g riwl tum ! Suppii6 (1975) 1 \X!LR 1485, ]491:... a foreign sovereign has no innnuniry when it enters inro acommercial transactionwith a trader here and a dispute arises which is properly within [he territorial juris-diction of our courts. If a . Jnreign government incorporates a legal entity which buyscommodities on rhe Loudon market; or if it has a state dcparrmcnr which chartersships on rlH~Balric Exchange: it thereby enrers iruo (he marker places of the world:and international comity requires rhar it should abide by rhe rules of [he marker,

Since [hose cases, (here have been two very recent cases on rhe subject: The Ph i li pp i/ 1eAdmi11i fl977] AC 373 in November 1975, in [he Privy Council; and A{/rtd D u nh ill 0/L ondon Inc I) Republ ic lifCllb" on May 24, 1976, in the Supreme Coun of the UnitedStales. There is a BilJ abo before rhc House of Representatives of the United Staresreponed on September C ) , 1976 (now passed inro law, Foreign Sovereign Immunities Actof 1976) which is very much on the lines I suggested. All this confirms me in the viewwhic h 1 h ow e ex pre ssed .

4.30 Lord Denning's approach was subsequently approved by rhe House of Lords inPILI)," Larga I.' J Congrcso de! Ptmdo.34 Since then, English courts, and [he Houseof Lords in particular, have shown an increasing interest in legal doctrines anddevelopments in continental Europe."Aid t o th e d ra fiin g afn ew i e g i . d J 1 t i o l l

4.31 Just as courts sometimes look to the jurisprudence of other jurisdictions to helpresolve a problem, so also legislatures borrow from enactments elsewhere.Jan Smits, 'Comparative Law and its Influence on National Legal Systems' inReinhard Zimmermann and Mathias Reimann (eds), The Ox fo1 " dHa ll dbookofCOmpil1"alive i..IlUJ (OUI>, Oxford, 2006)The lise of comparative law while drafting new legislation is as old as the phenomenonof statutory law itself. It is well known [hat the law of the "I\velve Tables (450 Be) W;lSin fluenced by Roman visits to foreign (in particular Creek) cities and even rhe Code: ofHamrnurabi (1,700 B e ) is presumably based upon the laws then prevailing in the NcarEast; In Iacr, the modern science of comparative law was primarily provoked by the wishto look at foreign law to improve national legislation. This discipline of'legislarion com-paree', as propagated by the Sodhi d , ' Li,_'! , is /mioflCompare (fi)un(ied in 1869), led ro thestudy ofi~Jreign codes nor only in France b L H also in other countries. Famous examples ofdrawing inspiration from foreign law arc [0be found in Cermany, where rhe Pruss iancompany law of 1843 W3.~parrlv based upon [be French Commercial Code of] 807 and

:1: ' [1983] I AC 244 (lIL).:,5 Set, for example, FainhiM 11 GienJJiWOi hound S er uic : L I d (2002] J AC 32 (sec below,

para 4Ji I); W ' l 1 i r e :.


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Chapter 4: Comparaiiue Laio and Its Relevance 10 Transnationai Commercial Lau )where rh e large nineteenth century unification projects in {he areas of private law, procedu-ral law and criminal law were inspired by extensive comparative research as well. There isalso abundant evidence of such infiuencc of foreign law on national legislation In othercountries. \Xlhen Alan War.son held [hat [be migrarion of ideas between legal systems is'rhc most ferrik source of (legal) development', he rcft~rfed mainly ro legislation beingadopted by countries other [han rhose for which it was originally passed. More examplesinclude income lax, which was imported from England [() the European Continentaround 1800, Austrian comperirion J a w , which formed the basis h)r the German Jvmdl.~t '_(etzof 1923, [he Swedish insrirurion of [he ombudsman, which was rakcn i)ver in many conn-tries, and rhe French Loi Bl1riima(I985), which regulates [he compensation ofvicrirn, oftrafllc accidents and which was irsclfbased upon comparative research and subsequentlyinfluenced other European countries' legislation. The wholesale imporrarion of civil codesinto other countries is also a well known phenomenon. Thus, nor only did the FrenchCode c iv il serve as :1 model for man)' countries in Europe and Sourh America, the SwissCivil Code of 1907 was taken OVer in Turkey (] 926), and the drafts of the 1900 (;crmanCivil Code, ro ge rh er w ith French law, played a large role in the draFting of the Civil CodeofJapan (896). The new civil codes of the Netherlands (1992) and Quebec (1994), andthe new German law o f ob liga tions of200], were also based upon extensive comparativereasoning. Likewise, ir is no coincidence rhar most European countries have enactedfather similar laws in the fields of environ me mal liability, company law, social security andfamily law. Sometimes it seems ;LS if:'one can meticulously trace the rnigrarion of an insti-union from one country to another: rhus, same-sex-marriage was firs[ recognised bysrarute in the Netherlands in lOO], subsequently accepted in Belgium and rnosr of rhcCanadian provinces in 2003 (followed by the whole of Canada in 2(05), accepted in dlCstare of Massachusetts (2004) and Spain (l005), and i 1 5 inrroducrion is now being dis-cussed in many ocher countries. Of special importance is the influence of\Xlesrern Jaw onthe former communist countries of Central and Easrern Europe: [he new codes in theareas of civil, commercia! and criminal law were usual!)' based upon extensive comparativeconsiderations. The same is true J~)rChina, which also based irs new contract code of 1~)99on comparative research .In most of [he above examples, the respective g()vernnH~1H5had resources available ro inte-grate comparative law findings inro the drafring of new legislation. In civil law countriessuch as Germany and France this has even become murine: in rhe drafting of any majornew srarurc, [he ministry of jus rice usually looks for inspiration (0[he laws of other coun-rrjcs. In this respecr, ir sometimes solicits opinions on ({)[(~ign law from comparativelaw research centres, bur nor infrequently it relics on research by i r s own civil servants.This is diJTcrem in mall)' common law jurisdictions, where a rninisrry of justice in theConrinenral style docs not exist. However, one cannot say rhat there is less influence o(fof-eign law on these countries' legals}'srems, only char such influence takes a different Iorrn.In the United Kingdom, it is through rhe English and Scottish Law Commissions duecomparative law 6nds irs way into legislation. Section 3(l)(f) of the Law CommissionsAcr 1965 stares that: one of the functions of the Law Commissions is 'to obtainsuch infer-marion as to [he legal systems oforher countries as ;lppears to [he Commissioners likely to!:lcilirare the performance of any of' their functions' (that is: systematically developingand reforming rhe law of England and Scotland). An example is [he (English) L1WCommission's report on 'Privity of Contracrs: Conrracrs (or the Benefit oiThird Panics'.Ir nor only discussed the laws of orher common law jurisdictions, but also srared dUI J fac-(Or in support ofrcformofrhc third pany rule in E nglish law was rhar 'the kgaJ systems ofmost ofrhe member stares of the European Union recognise and enforce {he righrs of third

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Part I: Gene ra l Princ ip le scomparative law analysis in England was driven by (he requirements of trade.This was Leone Levi's great four-volume treatise published between 1850 andJ 852 comparing the mercantile laws of rhe United Kingdom with those of nofewer than sixty other countries, together with [he Insriru res of Justinian. ~9 Inthis remarkable work, Levi addresses the law applicable to merchants generally,commerce generally, partnership, agency, carriage of goods, contracts, sales,bills of exchange, mortgages (less extensively), shipping, bankruptcy, commer-cial jurisdiction, and tribunals, nor to mention statistical charts, a history ofcommerce, chronological tables and a table of usances.f" 1-1esummarizes thelaws of Great Britain, then of each of the other fifty-nine jurisdictions, follow-ing which he sets out an analysis, highlighting core similarities and differenccs ..

4.36 Foreshadowing efforrs to follow, Levi was the first to propose the unificationof international commercial law, a 'Universal Code', on the basis of extensivecomparative law analysis." Levi believed rhar his work identified 'comprehensiveuniversal principles, such as any country professing to have regard to justice mayreadily consent co.' Like the quest fo r tile holy grail of a new jus commune, this pur-suit of universal principles of commercial law has so far proved fruitless, thoughvigorous attempts have been made ro revive ir through the concept of the new le xmercatoria.t?

4.37 In the 150 years since Levi's great work, there have been a considerable numberof inremariona] insrrumcnrs in the fidd of commercial law, as well as regionalcommercial law-making, most notably in the European Union, for both of whichpurposes existing national laws have provided [he inspiration, though withoutprecluding entirely new solutions. Moreover, in interpreting a European Communityinstrument, the European Court ofJlIsrice Irequenrly refers ro those national lawsof Member Stares from which the instrument derived irs inspirarion.P Comparativelaw may also help ro identi(r a general principle hom which to bshion a new ruleof inrernarional law,

39 L eo ni L ev i, iHcrmmilc L zU ' o(G rcar B ritain compared wid , fh ,' Codes and L uos ojCommcrce of'Anhalt; .Ill/slrj,;, Baden, Baoari , Bcj,r;iuln, Brazil, Bremen, British (ohmic" B'hs;' C ; U 1 < 1 1 1 < "B r tm s wic !; , C im ,1 d . .i, ChiWI , Danmarl; Em 1I1cli,'s, F ra nce , F mnk jiJ l'[, G rN t(, C u(m !~ 'y, H flm bw gh ,Hanover; H ' 1 ; y t i , He ss e E le ao ra t , H in du smn, Holland. H U J 1 g a ' : i \ 1 0 n ; . 1 1 1 Islands, I .mlJhf1rr~r.Louis iana,II/beth. Llucca, Ll lX t 'mburg; Mai:, Alecklenburg; Mexico, Alor!e'll" Nassau, Nonmly, iVmmmu!y.R,pei S uite s, P arm a, Portugal, Prussia, Russ i :J , Sardinia, Sax{',Cobwg.C;{)l/J,l , Saxt:-Whnwr Saxony.S ou r h Amer ic a, Sf Lue i l i , SWC&I l , S w i r : : : , e r / m u j (Cantons), Spill;:, T u n is , 7 1t rk f: )\ T u s ca ny ; Tu. Sicilia,United Sfl


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Chapm-4: Cornperatiue LtWI and I ts j? eiC lh tnCCo T ra ns na tio na l Commercia l Lr/U. 'Konrad Zweigcrt and Hein Kot:l.,Ani1lf1"tJriucliol1 to Camparatiue Law (3rd cdn,transl. Tony Weir, Clarendon Press, Oxford, 1998) 24-5The final function of comparative law .. . is irs significant role in the preparation of pro-jeers for [he inrernarional unificarion of law. The political aim behind such unification isto reduce or eliminate, so Eu as desirable and possible, the discrepancies between nationallegal systems by inducing them 10adopt common principles of law. The method used inthe pas! and still ofren practiced today is [0draw up a uniform law on rhe basis of work byexperts in comparative law and to incorporate i t into a mulriparrire treaty , ,_Unific:l.rion canner be achieved by simply conjuring up an ideal on any topic and hopingto have it adopted. One must firS!. find what is common [0 the jurisdictions concernedand incorporate that in rhc uniform J a w . \'>?herethere are areas of difference, one rnusrreconcile them either by adopting the best existing variant or by llnding, through com-parative methods, a new solution which isberrer and HJOree~l..,ilypplied than a l l Y ofrheexisting ones. Preparatory studies in comparative law arc absolutely essential here: with-out rhcrn one cannot discover the points of agreement or disagreemenr in (he differentlegal systems of the world, let alone decide which solution is the best. A model of such apreparatory study is ERNST RABEL, D as J?ccht t les W izrenJu 1U ji, .. , which was ofviralimportance for the unification ofinternational sales law.Of particular significance is [he interest ofborh developing and developed coun- 438tries and regions in inrernational and regional restatements. Thus, UNIDROITis advising the Organization for th e Harmonization of Business Law in Africa(OHADA) OIl a draft Uniform Act on COntT


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Part J : General PrinciplesReconstruction and Development, as well as national experts providing technicalsuPPOrt, in encouraging reference to foreign and best practice law and supponingmaterials in the law reform process, can hardly be overstated. The law and eco-nomics justification for commercial law reform also seeks use of foreign andbest practice sources, although rhe 6crual basis for that justification often seemsanecdotal.Refinement (~/th( conjiia 4laws

4.40 There are at least three situations in which comparativelaw has a role to play in thefield of (he conflict of laws. In the first place, resort to comparative law may benecessary in order ro enable the court to characterize an issue in a case involving aforeign clemenr." Second, a comparative analysis of conflict of laws rules maylead a court' to discard irs own rule governing a particular case, and to adopt thatfashioned by another jurisdiction. Third, such a comparative analysis, in showingthe relative advanragesand disadvantages of different legal systems, may influencea choice onaw in a contract, while the merits and demerits of a system in terms ofefficiency and predictability of decision-making may influence a choice of forum.Horatia Muir \X/an, 'Private International Law' in Jan M Smits (cd), ElgarEncyclopaedia. ojComp{Jr(uivt' Law (Edward Elgar Publishing, Cheltenham (UK),2006) 571-2Firstly, the competitive paradigm invests comparative law with a new importance, sincein highlighting diffcrc/Kcs between legal systems, it can point to the factors which makethem more or less arrracrivc to investors. The recent, controversial reporr of [he \X/oddBan!;., 'Doing Business' .,. has pointed OUl some of rhe normative and insrirurio nal (;IC-tors which rnay be more or less conducive to inrcrnarional investment, Comparative lawcan help show that the comperirivcness ora given legal system in rhis respect, Ii)r instancein offering greater legal certainty, may depend not only on [he content oiirs legal rules, buralso on the d1iciency of irs courts, or the availability o r dTecrivt remedies, .. Thus i f maybe that inrcriurisdicrioual competition is realistic only in the caseof hererogcncous prod-UCE, where regulatory policies create winners and losers. Rules which may appear to be'neutral', Or even 'natural' from an internal perspective, such as the rules on formation andvalidity (Ifcom racrs, can, when confronred with other legal systems, prove not only to beone legal construct among many other possibilities, bur also (Q comprise an implicitregulatory regime, , .A second role o r comparative law within the intcrjurisdicrional paradigm consisrs inconfronting the systems of private inrernarional Jaw themselves, to determine rhc extent10 which (hey are liberalizing Of regulating competition. In (his respect, rnobilirv is essen-rially metaphorical, as ir signifies less the possibility of moving physically hom one juris-diction to another (voring wirh one's feet) than rhc possibility to exit a legal SYSTem infavour of another. This is precisely where it becomes apparem rhar, to ;l certain exrcnt,law is a product on a market.

:'6 Zwdgert and Ki.)rz(1 1 7) 6-7.

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Chllp ter 4: Comparatioe Law and its Relevance to TransnationalCommercial Lau:Commercial L a w disput resolutionBecause of the huge growth in cross-border trade and finance, with many financial 4.41and securities transactions having points of contact with a number of jurisdic-tions, comparative law is increasingly relevant to dispute resolution, both bycourts and by arbitrators, as parries search j~)r rhe law (or alternatively a conflictr ule le adi ng to the law) most helpful to their case.Consis tent ') ! oj imopreJl lTiol l ()ful1~lormLll1JSComparative law is nor infrequently utilized when rhe interpreter is called upon 4.42to apply uniform texts. All modern commercial law conventions-which arepluri-lingual with each text being 'equally authemic'47-expressly state that, in[heir intcrprerarion, regard is to be had to their 'intemarional character' and the'need to promote uniformity' in their application. One of the variants furtheremphasizes rhc need to promote 'predictability' and the other 'the observance ofgood faith in inrernarional trade'.\'i:.'hilc these will be taken up in subsequent chapters, we here observe that this 4.43is a dear directive to take inro account, at least in the case of ambiguity, f()reignlanguage texts and related legislative materials, and, to some degree, foreign deci-sions. Questions and problems arc ever present, more so relaring to foreign deci-sions. First, differing weight is given to the case law across the spectrum of legalsystems. Much has been written, tor example, on the differing form, logic, func-tion, degrees of aurhoritaciveness, and role of s ta re d e cis is of case law as betweencommon and civil law systems. Second, a court may be reluctant to have regard todecisions in legaJ systems with Iundamcnrally different characteristics and inter-prerarive principles. Third, many rules of inrerprcration limit the use of supple-mental material when a text is thought by the court interpreting it to be clear.Fourth, national courts often, as a matter of practice, interpret internationaluniform law in a manner chat avoids inconsistency with national law. Yet inter-narional legal data bases have been and arc being set up to facilitate the lise offoreign decisions on internarional texts.Much experience in comparative judicial inrcrprerarion derives from [he treat- 4.44merit of uniform texts in the field oftransporration law, namely, the treaty systemsaddressing inrernarional carriage by air, rail, sea and road, most notably under [heHague Rules (shipping-unification relating to bills of lading) and the \,*'arsa\vSystem (air-unification relating to carriage by air). Language problems arc:

41 Sec; Article 33( 1) and (3) of the Vienna Trearv 011 the Law ofTrearics 1969. \'rherc:1 rrcatv isauthenticated in more than one bngu;1gc:, each is \gually aurhorirarivc' unless otherwise agrccd.\X/hcrc;j 'comparison ofthc aurhcnric rexrs discloses a diflerenc(:ofm..:;wing' (nor removed by appli-cation of (he Vienna Treaty's general rule of inrcrprcration, Arrick :31, or through suppicrncnral)]1


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Part 1: Gemnzi Principlessometimes acute, and cOLIn:; may find [hal a t{)J'cign language text is dearer andmore precise than [he text in j rs own language, even where the latter is equallyauthentic.Air hmlCel!Saks 470 US 392,105 S Ct 1338 (] 985)[This case, before (he United Stares Supreme Court, addresses the inrerprerationof (he word 'accident' under Arricle 17 of the COJlVCmiOIl for the Unificationof Certain Rules Relating ro [nrernarional Carriage by Air 1929 (,Warsaw Con-vention'), Under Article :36 of the \\7arsaw Convention, [he authentic text isFrench.]jusrice O'Connor delivered rhe opinion of the Court at 396-404:Air France is liable (0a passenger under rhe terms of rhe \\?arsaw Convention only ifthepassenger proves thar an 'accident' was the cause of her injury.,. The narrow issue pre>5( '11[( : .1i~'whether respondent can meet this burden by showing d13[ bel' injury was causedby the normal operation of [he ;lircrafr's pressurization system, TJl{~proper answer turnson inrerprerarion of'a clause in an inrcrnarional neat)' towhich rhc United Stares is a parry.'[Treaties] arc construed more liberally than private agreements, and to ascertain theirmeaning we may fook beyond the written words to the history of the rrcary, rhc nego[i.arions, and tht. practical construction adopted by the parries.'[The COurt then highlights the perrincnr wording from the French [ext t!-orsqul' l i /ceL/enrqui d cause Ie Jf)JItm,lg/) and the official American translation ('if the accidens whichcaused rhc damage') which was before rhc Senate at {he time of advice and consent torarificarion.]'fhe word 'accident' is nor ;1 technical legal rcrrn with ;l clear legal meaning, , . 'Ji)dercrm IIll' rhc meaning of rbe rcrrn 'accident' in Article 17 we must consuier iII Frnli:JJnu:,wing [emphasis added] ." This is Hue nor because 'we arc forever chained toFrench law ' by the Convention .. , but bCG1US(: ir is our responsibiJity ro give the spc-c i f i C words of a rn::;lry a meaning consistenr with [he shared expecrario ns of rhe con,rracring parties ... \Xie look ro the French legal meaning I~)f"guidance as to theseexpccrauons because rhe \\!arS;lW Convention W:15 drafted in French by continentaljurists ... A survey of French cases and dictionaries indicate [hat' the French legalmeaning of rhe rcrm 'accident' differs lirrlc from the meaning ()f rht term in Gre;]!Brirain, Germany, and the United States . .. In determining precisely what C1USC$ canbe considered accidents, we 'find (11"opinions of our SiHC[signatories [0 be en tided [0considerable weight' ... \Vhile few decisions arc precisely on point, we note rhar, inAir France I! H"ddul, j u gmna o/Jum 19. 1997, COifI' d:7ppel t i , ? Pari! , , , , ;1Frenchcourt observed that the term 'accident' in Article 17 of [he \X/arsaw Convention embracescauses of injuries rhar are fortuitous or unpredictable. European JegaJ scholars haveg(,nerally construed the word 'accidcn r' in Article 17 to require rhar [he passenger'sinjury be caused by a sudden or unexpected event other [han the normal opcr.uion ofIll" plane.

4,45 English courts have raken a similar approach and, indeed, have on occasionquoted extensively from foreign Janguage texts.

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Chapter 4~'Comparariuc Law and its Re/OJi lnCe to Transnational Commercial Lau:Fotberg ill u M o narch Airlines L td [1981] AC 251 (HL)[In this case the House of Lords had to consider the meaning oftheword 'damage'in Article 26(2) of the 1929 \X1arsaw Convention on carriage by air.]Lord Diplock at 281-82:The language of ;111 international convention has nor been chosen by all English parlin-mcnrary draftsman. Ir is neither couched in the conventional English legislarive idiomnor designed to be construed exclusively by English judges. It is addressed to a muchwider and more varied judicial audience than is an An of Parliament" due deals withpurely domestic L J w . lr should be interpreted. as Lord \Xfilberforce put it in [amesBuciianan eJ Co Ltd 11 Banco hrwmding c r Shipping (Uk) LId [1 9 7S 1 AC 141, 152,'unconstrained by technical rules of English law, or by English lega.! precedent, bur onbroad principles of general acceptation.'Lord \X1ilbcrf'orce at 272-74:My Lords, some oft-he problems which arise when the courts of {his counny arc [Ked withtexts of trcaries or conventions in different languages were discussed uvjamos Buchanan ( +Co L Ed u B abco F()TW{Jr(jjng c \ - SiJ ippil7g (U K) L Id f 1978] AC 141. It is obvious [11;\(rilepresent rcprescnrs a special and indeed unique case.Here ir is nor only permissible to look at a foreign language text, bur obJiga[ory. \17har ismade pan of E nglish law is the text set out in S ch e du l e 1, ic in borh Parr I and Parr 1 [, Wboth English and French texts must be looked at, Furthermore, i t canner. b(, judgedwhether there is ;In inconsistency between tWO texts unless one looks ar both. So, in rheprescm Clse rhc process ofinrerprcrarion seems to involve:L Inrerprerarion of rhc E ngldl rexr, according 10 die prin ciples u po n which inter-

liar-jolla] convenrions are ro be. inrcrprercd (sec Bucbanan': else and Stag Lim Ltd J .!Foscolo, M ang o cr Ca Lr.dj]932l A(: 328, 350) .

.) Inrcrprcrarion of the French rexr according to rhe same principles but with additionallinguistic problems.

3. Comparison of rhese meanings.;\-'!Ort;over, if the pnKess of interpretation leaves rhe matter in doubt, The question mayhave ro be l;lCed whether 'rravaux prepararoires' m:ly be looked ar in order to resolve thedifflculry.J start by considering [he purpose ofArricle 2(), and J do northink rluu in doing 50 I aminfringing a ny 'g old en rule.' Consideration of rhe purpose of an enacrrnenr is a lw ay s alegitimate pan of the process of interpretation, and if it i 5 USU;}.I--Clnd indeed correC!-to look first for ,1 clear meaning of rhc words used, it is certain, in [he prescnt case, bothOIl a firsr look at the relevant rcxr, and from the judgments in rhc courts below, rhar no'golden rule' m~anj!lg can be ascribed. Th(: purpose o r Article 26, on d1C other hand,appears [0me: to be reasonably dear. Itis : (I) w enable the airline (0check the nature o rrhe 'daruagc', (2) [() enable ir to make inquiries how ;lnd when it occurred; (3) W cllabkit to assess irs possible li;\biliry, to make provision in irs accounts and ifnecessary to claimon irs insurers; (4) to enable itto ensure rh;!t relevant documents (for example, dh: bilg.g;lge checks or passenger ticker. or the air waybill) arc retained unril the issue of liabilityis disposed of.


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Pan I: emend PrinciplesIf one then inquires whether these considerations are relevant to a C


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CIJt1ptcr 4: Compart1 tiu e L aw and I t s Reie l Jal1ce U! Transnat ional Commercial L a u !looked at dictionaries and at certain len-books and articles and in my opinion this processcannot be criticised. Neither could the)' have been criticised if(hey had allowed expert evi-dence [0be called=-for 'avarie' is, or may be, a term of art. There were five dictionariesinvolved, of evidently different standards: some of English publication, others of French.I regard the latrcr, which provide an analysis . as of greater value chan the form er, w hichprovide a t rans la t ion -s ince then we have to interpret rhc translation. 1\\'0 arc of highquality-that ofM Raymond Ihrraine, docteur en droit [NolJl/tau Dictionnaire de Droite t. i I I > SciellCl~sEconomiqucs , 4[h ed (1974)], and [he Tresor de I" l .angue i+l1ll(ilisc (1974)published by [he Centre National de la Recherche. Scicnrifique. They seem tome to show[hal 'avaric' has both an ordinary meaning and a special meaning as a term of maritime law.In the ordinary meaning, th e word signifies p hy sic al d am a ge to a movable; in it s specialm eaning, it is capable of meaning physical damage, or lo ss, in clu din g p artial loss, In myopinion this docs nor carry the matter much beyond the English text: both use words ofsome am biguiry: perhaps [he French [ext points somewhat more in rhc direction of partialloss than does [he English. The rext-book writers (to be considered) do not favour the viewthat 'avaric' naturally means partial loss and I do nor think that we can so hold. An attemptwas made ro carry the argument from the French text further by suggesting rhar 'avaric'means 'average' and 'average' means partial loss . Bur 1 cannot accept [hal' it is sound, ineffeCI, !O rcrranslarc 'avarie' by 'avcrage' when in fact i f is rranslarcd by 'damage.' Clearly'average' could not be sensibly inserted in the English text in replacement for 'damage.'Nor am I persuaded [hal 'average,' [hough it may have to do with partial loss, meanspartial loss.The linguistic argumenr, alone, remains ro my mind inconclusive'.The text-books and articles, however, do take the marrer further. Professor du Ponravicein ']viaririme Law and Air Law' [RcvueTrimcsrriellc de ( )rO il Commerc ia l, vo!XXI (I %8),P 472] expresses a dear opinion thar 'avarie' i n A r ti cl e Hj includes partial loss following atheft, approving a decision to [his efftct by an Argemine court. M Max Lirvine, of the FreeUniversity o f Brus se ls , writes, referring to A rrick 26:\Vherc the loss or destruction is only partial, it is necessary ro decide rhar Article 2()must be dlecrive since the partial loss or destruction a fortiori constitutes damage.(D r oit A /r im (Brussels, I~)70), p 250.)

Professor Rodiere of the University of Paris. in his book on transport law (Droit dcsTransports (Paris, 1977) writes (s (07): 'The [ext' (ofArricle 26)' '" relates only to aver-age' (ic, 'avaric'). 'In my view, it mUST be extended to [he partial loss, ... ' agreeing withM Lirvine whose work' is rhe safest [here is. ' H e appcars ro express a contrary view in theP r e c i s D alloz (D roit dc.! Transports le m: stre s e t ib'ims, 2nd ed (Paris, 1977) s 271), bur thefuller rrearrnenr in his ow n w ork is, in my view. [0be preferred, D r Werner Guldimann,attorney at Zurich, often acting as expert t()r the Swiss Govcmmem, writes in /nU'ml11iOIlIl/C;Lt~fitnltl''P0l'ln,chr(Zurich, 19(5) p 155:

[Article 26 , paragraph 2J sripulatcs time limits for complaints made in respect ofdanuge ... and deby, ... to goods and baggage .. , No rime l imit is SCI for destruc-rion and loss, since in such cases it may be assumed that the carrier is already awareof [he occurrence and i s able ro make the necessary arrangements required to secureproof-since this is [he aim of sl~ch rime limits. Thus [he rerrn damage is given ab ro ad in te rp re ta tio n: simply partial loss and partial destruction are both basicallyconsidered to be damage ...

] 6 3


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Ptlr! J: Gene ra l Pr incip le sI quote also from an extract from the Argentine C om pm fjjo d e D ered Aerondutico (] 9(5)written by Juan A Lena paz because this well stares the reasoning (section 46 J , P 286):As paragraph 2 of Article 26 only mentions 'damage,' it is necessary lO determinewhether the prorc$[ (ie complaint) is relevant in the case of'joss' of [he merchandiseor lugg:lge. A disrincrion should be made here between roral 10s5 and partial loss.Since the Ilrsr is a (acr which can be verified ar any tirnc wirhour the need f()r proof, aprotest is nor necessary ro bring an action against the transporter and paragraph 3 ofArrick 13 ... is applicable: ... On rh e orhcr hand, in [he. case.ofpanial loss, it is viralto establish what is missing as quickly as possible since, ;15 time goes by , the probabil-ity of the Joss being rhc result of an event occurring after delivery increases.

1'1'1)'Lords, this consensus is impressive. Itsupports an interpretation of Art.icle 26(2) towhich a purposive consrrucrion, as I hope to have shown, clearly poinrs. The langu:lge ofboth texts is unsatisfactory: some strain, ifnor disrorrion, seems incvirablc burof {he gov-erning French rexr it can ar lcasr be said rhar it docs nor exclude parrial loss from {he scopeof the par:1graph. I am of opinion therefore, on dIe whole, that following the sense ofthe matter and rhe conrinenral writers we should hold that parrial loss of conrcnrs isincluded in 'damage' and rhar consequent action m~~ybe barred in the absence ofa timeouscomplaint.

4.46 \X !I1 atis true of im ernarional conventions em body ing substantive law ruJes is also[rue of private international law conventions.Mathias Reimann, 'Comparative Law and Private International L1W' in ReinhardZimmermann and Mathias Reimann (eds), T he O .iford H and book ojCompa:rarilJl ' L aw(OUI~ Oxford, 20(6)In our time, an increasing number of private international law norms originate nor in aparticular domestic order bur rather stem from international conventions adopted by agrowing. number of S[;1[C$. This is especially true among rhe member countries of theHague Conlcrcncc 011 Pr iva te Jn re rna ri ona l Law. The construction of norms in, Of thosebased on, such conventions POStS particular challenges and is especially dependent on acom pararive approach.This is mainly because the very purpcsc ofsuch conventions is the (worldwide or regional)uniiicarion ofprivare inrernarionallaw rules, Obviously, courts would de fe at that purpose:jf dkY were [0 inrerprer convention rules in differenr ways, eg, by looking only 10 rheirrespective Iorurn laws for purposes of qualification. It i" therefore wieldy recognized thatconventions must be interpreted on [heir own terms (autonomously') and that guidancemust be sought by looking to the other signarory states' substantive laws and practices.The most impressive manifestation of this approach is the rich case law of th e EuropeanCOlin ofIusrice pertaining to rhe so-called Brussels Convention. Here, one can see pri-vate internarional law and comparative law go band-in-glove in the routine practice ofaninternational rribunal, Today, such a comparative approach is also embraced by man)'national courts, especially in Europe. The track record of American courts is decidedlymixed in that regard. In two maim decisions inrerpreting private inrernarional law con-vcnrions, rhe United States Supreme C{)UH duly looked ar the ncgoriaiion history of therespective conventions and at: the !~m:ign LHO: b;~ckground bur made no visible effon to

COUffS


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CIJllp!Cr 4: Comparatiuc Law and Its RelCl!(lI1CC to Transnaiional Commercial Latoexpression of national expectations, allegiances and emotions. Savigny tried to grasp thise lu siv e a sp ec t of law in the Volk.\gcist idea, which rhrcatcns always to slide into a danger-ous mysticism. Nevertheless. (he stlggest:ion that law has an imporranr role in expressingor recognizing aspecrs of emotional experience in personal or collective life is no! absurd,While at one level this f(JCl1S on affective relations is extremely abstract=--Ior example, onthe nation, or even on 'Europe' Of the '\V(~s['~ar another it is found in everyday aspensof the regulation of domestic, Ilduciary or caring relations at interpersonal level.

D. MethodologyThe functional approach to comparative JawThe method of comparative study of"different legal systems may be either f()rmal 4.50or functional. The formal method examines the concepts and doctrinal base ofeach of [he systems under comparison, the [uncrional method addresses their pur-pose and uriliry, Zwcigert followed Rabel in emphasizing that jf the practical aimsof legal comparison arc to be achieved, the functional approach to comparativelaw is the only one worth adopting. This is explained in the following illurninat-mgpassage.K Zweigcrl, 'Mcthodological Problems in Comparative Law ' (]972) 7 Isr L Rev 465,46(>-7 and 471-2The basic principle of comparative law methods i , ) that of functional equivalence; and allother methodical rules-for rhc selection onegal systems for 3rdTling a given problem, thescopc ofinvcstigarion, rh e scrtingup of a system, ere-derive ii'om rhis principle. You can-not compare the incomparable, and in law, the comparable is only that which fulfils thesame task, That might appear ((J be self-evident except" that it comprehends a wealth ofexperience in the fie.ldof com para live law, the full implications of which (he beginner willnor at once grasp, The one'. Iundamcutal experience which goes to the very roots of comeparativc law is thar ever")' socicry poses the same problems to be solved by irs law bur thedifferenr valid legal order, solve these problems by very diHcrem means, alrhough in theend and for practical reasons the solutions arc about equal. The slarting question of everyanalysis should therefore be pllt in purely functional terms, the subject of analysis shouldbe formulatcd without reference ro the concepts ofone's own legal order. For example, itwould n o! b e fe asib le to ask what" forms docs fim!ign law prescribe fo r a sales contract? Oneshould bener ask by what means a kgal system prmecrs a pany from entering into a trans-anion without due deliberation or from being bound by a contract which was nut S(:I"-iously intended to be a . contract?A fUGl] point ar which everyone of us {and nor just the beginner) is confronted with theprinciple of funcrionaliry, is the premature conclusion when researching a problem charnothing is to b e found in that S Y S T e m with regard to the problem. Such a conclusionshould normally send you back ;:0 review your staning point, your 'problem', and secwherhcr in fi.mmdaring it you have really freed yourself from (he concept." thin.king


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About: [he working techniques of com pararivc law I need only add a few general w ords.1 am re fe rrin g to the problem s of selecting the sy stem s of law which arc ro be included i f )rhe process of comparison and to rhe order of comparative studies. reports by country :U1dthen ;1 comnararivc and critical analysis of signiflc: lm solutions which have been found.This comparat ive analysis is f:lirly difficult, fOf it mea ns v ie win g the di!1crenr solutions ina new and-s-above :111--(:ommol1 perspective. In the reports by CCHlJHry, which arc reallynothing bur r("pons, every solution which a legal problem iu s found in ;1 ccrta in system ofJaw is presented comprehensively but on irs own terms, in irs own rules of sta tu re or caselaw, ir s own concepts and systematic reference. In [he comparative analysis everyone ofthese solurions is set : lga ins r . [he background of, and judged by , all other solutions ratherdian in the conrcxr ofir~ own legal order . Th is i s one new perspective, (hat of comparisonin irs proper meaning. The second which is (he premise of the first and in se pa ra bly lin ke dro it is the Iunctional perspective. FoJ ' ir is the sam e tuncuon, ( he f~ d l1 1 1me lHof the sam erask, which provides the only possible b : I S i s for a meaningful comparison of the insritu-lions of d iJ 1 e re JH lega l sy s t ems , Function is the starring point and the basis of all cornpara-rive law. Ir is (he senium comparationis (common poinr of reference) which earliercornpararisrs have long searched lor in vain . This means for the pro(e8S of comparison that(he solutions w hich the differenr leg:l1 SYSI( :ms have arrived at m ust be stripped o( alJ sy .~-rcrnaric concepts o f t hese sy stems an d be viewed solclv and exd usively with regard to [heirftu1Ction, ro the fulfilment ofrhe problem which has origin.ned them,

4.51 As a good illustration of the po in r Zw cigerr was m aking, consider the case of aseller w ho sells goods knowing that they arc subject co a hidden defect makingthem unfit fo r their purpose. U nder French law, the seller has a duty ro disclosesuch a defect and his J;lijurc to do so may enable rhe buyer 10 avoid the contract.A comparat ive law y er e xamin in g E n glish law would look in vain f()r;l Jury of dis-closure in [his siruarion, and m ight w ell b e m is ta ke nly led to conclude [hac i f th eco ntra ct w ere go ve rn ed by English law the buy er w ould have no remedy , Nothingcould be further 6'001 th e rru rh , E n glish law imposes a liability on the seller [0supply goods thar are I1 t for [heir kn ow n p urpo se . Breach of th is d uty entitles thebuyer [0reject goods and /o r recover damages . There is. therefo re , no need for adu ty of disclosure; (he buyer i s g iv en p ro tection co mparable to rhar furnished byFrench law but by a differcnr route. Moreover, th e se lle r's lia bility is sITier and doesno t depend on h is p rio r k now ledg e of [he defect.

4.52 Thus, whar in one sy srem is characterized as a pre-contractual duty o f d is cl os ur eis treated in another as a contractual duty to furnish goods f i t fo r their purpose.Both approaches lead [0a broad ly com parab le solution to rh e problem posed, Theexperienced compararisr w ill come to [his result by ignoring the conceptual boxesin which rhe respective du ties arc placed, and focusing on the funC tion of the dutyin either case, w hich is to prorecr { he buy er against the supp ly of non-conform inggoods.M


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Part l: Genera l Princip le sneither advances the law nor responds to changing commercial needs, nor docs itusually provide the higher degree of specificity-rules, as opposed ro sGUld;lrds-required (or modern cross-border transactions. The formulation of rules on [hebasis ofrhe lowest: common denominator is a serious rernprarion to those involvedin the ever-growing number of projecrs which rry to discover the common Ioun-c la rio ns o f European law in order ro propose possible uniform law s or, ifsitting insupranarional COUtlS, to shape the law on [he basis of 'general principles of law',Legal rules so manufactured run the fisk nor only of displeasing everyone bur alsoof creating a new, synthetic law, cur off entirely from [he legal and cul rural rootsof any particular country; The First President of the French Court of Cassation1 \1 GuyCUliver described vividly [his new and very contemporary danger, and hisviews deserve to be quoted more fully.Guy Caniver, 'L1 convergence des sysremes juridiques par I'action du jugc', in De taushorizons (Melanges Xavier Blanc-jouvan (2005),11, 20-1This [entire] dispute illustrates the contrast between the abstract formalism of humantights and the reality of hisrorical traditions. This is an old debate, at leas! ~s old as dialover human rights. Can we endanger what is dear to our history in rhe names of disem-bodied principles running roughshod over rrad irio ns, habirs an d ex isring realitics in thename of an ideal? The fights of man, fwm their first appearance at the end of the ] S rhcentury, were accused of ignoring concrete realties in [he name of abstract principles[cirarion of Burke]. And one could already discern emerging;J. disagreement between theEnglish auachmcnt to pragm.uisll1 and the French preference for the rabula rasa. T;) behoncsr, ir is no longer a mater of conflict between [these] cultures bur, rather, a clash, onrhe one hand, hcrwccn a long-established and prestigious culture and. on the other, ;lnon-culture, an :lggregate of mallY national kgal cultures. Even though many Europeanlawyers fe d rhar rhey share something in common with one another, they do nor have thesame Ieelings towards the Strashourg else law th:u rhev nourish towards rheir homegrown culture. Indeed, in some extreme cases, jostled by such arrirudcs, narional lawyersart' thus forced [0 react by adopting nationalistic positions denying the legitimacy of rheEuropean judge. In this way Europe succeeds in bringing closer ro us rhc agony of glo-balisarion, For c~U1we ever be satisfied by a svnthcric culture? National culture is alivewirh stories, symbols, traditions, which is another way of saying a shared consciousness,For by being omnipresent if needs nor to be proclaimed. T() articulate it risks provingEuaJ to it for it would be ranr.unounr ro admitting rhar it is threatened. Article 6 of theConvention of Human Rights is nor, therefore, the amid ore, a way of ridding rhe law ofirs im purities, but a solvenr of n.uional lcgal cultures. If people that do nor

excerpt from comparative law and its relevance to transnational commercial law

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