LDC Representation in Non-Legislative Drafting of International Contract Law

1
LDC Representation in Non-Legislative Drafting of
International Contract Law

• Mateo Goldman

2
Main Issue

• To what degree do different
• drafting methods affect the
• representation of least developed
• nations interest in international
• contract law?

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Trends in International Commercial Law

• Traditional Method
• UN Convention on the International Sale of Goods
  (CISG)
• Hard law drafting body with close to 100
  representatives requiring ratification upon
  completion
• Only concerns contracts for the sale of goods
• Current Trend
• UNIDROIT Principles of International Commercial
  Contracts
• Covers all forms of contracts, including for the
  goods, services, etc.
• Soft Law drafting body composed of 15 academics
  requiring no ratification upon completion
• Evolution of UNIDROIT Principles into Hard Law
• Use by parties as Lex Contractus
• Use as substantive law in international
  arbitration

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Concerns for Least Developed Nations (LDCs)

• Ratification of Treaties as the Typical Method of
  Protecting LDCs Interests
• Places accountability on drafters to assure all
  interests are met
• If LDCs interests are not met, reservations are
  still an option
• Evolution of Soft Law into Hard Law Limits LDCs
  Ability to Protect its Interests
• The UNIDROIT Principles may be applied as
  governing law in disputes between citizens of
  countries which do not approve of the law

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So What?

• This paper will consider whether or not this
• new development has had any affect on the
• presence of LDC interests in the
• UN Convention on the International Sale of Goods
  (CISG) and,
• a conventional treaty requiring ratification
• UNIDROIT Principles of International Commercial
  Contracts
• a soft law instrument which has transformed into
  hard law

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General Questions

• Is it possible to identify unique LDC interests
  in international contract law?
• If so, to what degree are LDC interests
  represented in recent international contract law?
• What affect, if any, do differences in drafting
  procedures have on LDC representation in
  international contract law?

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Identification of LDC Interests

• Arguments made by LDCs during negotiations in
  both instruments
• Scholarly analysis identifying LDC-specific
  interests in international contract law
• Civil vs. Common Law

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UN Convention on the International Sale of Goods
(CISG)

• Procedures
• Numbers and percentage of LDC representation
  during negotiations
• Other procedures designed to assure participation
• Substance
• Number of provisions in favor of LDCs found in
  CISG
• Number of compromises made by LDCs

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UNIDROIT Principles of International Commercial
Contracts

• Procedures
• Numbers and percentage of LDC representation
  during negotiations
• Method in which members are invited to join
• Substance
• Number of provisions in favor of LDCs found in
  the UNIDROIT Principles
• Number of compromises made by LDCs

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Comparison and Analysis

• To what degree did LDCs secure more or less of
  its desired provisions in either of the
  international instruments?
• If there was a difference, to what degree can
  that be attributed to the greater democratic
  protections afforded in the CISG?
• To what degree are any differences attributed to
  the different subject matter of the agreements
• If there was no difference, what general
  conclusions can be made about the need for
  democratic assurances in the drafting of
  international commercial treaties?

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Brief Overview

• Trends in International Contract Law Emergence
  of Soft Law and its Current Usage as Hard Law
• Affect on LDCs Ability to Protect its Own
  Interests
• Identification of LDC Interests in International
  Contract Law
• CISG Procedural Representation and Substantive
  Analysis
• UNIDROIT Principles Procedural Representation
  and Substantive Analysis
• Comparison and Analysis