The ideology of the legal profession critically shapes the law,[1] and transnational arbitration, litigation and commercial law is not an exception. Last week the 2016 Annual Conference of the International Bar Association (IBA) took place in Washington, DC. The IBA is the “world’s leading organization of international legal practitioners, bar associations and law societies”.[2] Its 2016 annual conference gathered more than 6.000 delegates coming from jurisdictions all around the world to discuss, over one week, about their professional experience, current legal developments in their fields of practice and enlarge and strengthen their international networks. The conference hosted more than 200 working sessions, workshops, panels and other activities, covering almost all areas of the legal profession, including general interest topics, legal practice and public interest lawyering.[3] Hence, the IBA Annual Conference provides a unique insight into the legal culture of international attorneys and its interplay with the development of the law, including international commercial law and dispute resolution (i.e., international litigation, arbitration and mediation).
Probably the most apparent phenomenon reflected by the 2016 IBA Annual Conference in this area of legal practice is the difference in the attention that international practitioners devote to international commercial dispute resolution law vis a vis international substantive uniform and model law. Excluding investment arbitration and mediation, the conference hosted at least four sessions directly concerned with international dispute resolution, including hot topics in international arbitration, the public policy and arbitrability exceptions under Article V (2) of the New York Convention, soft law in international arbitration and the Uncitral draft treaty on the enforcement of settlement reached through mediation. Moreover, frequent remarks on international dispute resolution were made by speakers and delegates in sessions not directly addressing this subject, evidencing a deep involvement of many assistants in this field, particularly in international arbitration. Remarkably, speakers and delegates in the Dispute Resolution Section showcase on effective advocacy for all modes of disputes resolution, especially addressed the challenges of panels conformed by arbitrators educated in different legal traditions. Indeed, how to achieve a meaningful and successful communication among civil law and common law educated attorneys seems to have been one of the most recurring topics at the conference, as evidenced by the many working sessions that directly addressed this subject (e.g., “Natural resources agreements: common law provision in civil law jurisdictions” and “Creating lawyers who can work across civil and common law jurisdictions”). This strongly suggest that, despite their global practice, international lawyers -including those dedicated to international dispute resolution- are still overwhelmingly attached to their domestic legal education and training.
The attention devoted by the IBA Annual Conference and its attendees to international dispute resolution highly contrast with the situation of uniform substantive law and model law. No working session was primarily concerned with uniform substantive law, the only one on model law addressed the developments of an instrument of a nature close to procedural law (the Uncitral model law on cross-border insolvency) and most sessions on related subjects did not refer in a relevant manner to the process of unification or harmonization of private substantive law. Informal opinions of different delegates attending the conference were illustrative of the reasons for this lack of interest: uniform substantive law remains relatively unknown compared with domestic law, it is rarely applied by courts and, when applied, it normally results in a completely unexpected surprise for the parties, arising from awards by national courts relying in the iura novit curia doctrine[4]. These views might be expected for many common law lawyers,[5] but it also holds true for practitioners of German speaking countries, despite that these jurisdictions evidence the most extensive and sophisticated case law on one of the most widely accepted instruments of uniform substantive law, the CISG.
This disparity in the importance of international commercial arbitration and uniform substantive law at the IBA Annual conference is not surprising. International commercial arbitration is a dispute resolution form normally agreed in contracts between highly sophisticated parties, counting with skilled professional legal assistance. Counsels normally advise their clients to exclude any applicable uniform law, e.g. the CISG,[6] and parties normally end up making a choice of law in favor of the domestic law of the one with stronger barging power or the law of a neutral mayor global commercial forum (e.g., the law of New York; England and Wales, Switzerland, etc.). The previous stresses that international attorneys still feel much more confident with the law of the tradition in which they were educated and explains that the challenge of communicating among common law and civil law lawyers remains one of the most recurring topics of the IBA Annual Conference.
This way, the 2016 IBA Annual Conference evidences that the professional ideology of international lawyers still distrust the process of harmonization and unification of private substantive law. Despite the relative success of Uncitral and Unidroit in obtaining the accession or enactment by many States to its most emblematic instruments, without a relevant change in the culture of the legal profession, this process will remain incomplete.[7] Hence, international organizations in this field not only need to target States to make them parties to the relevant international instruments. These organizations must also address the underlying legal communities in order to convince them that the process of unification and harmonization of private substantive law is useful and valuable for international lawyers and their clients: uniform and model law can provide them with a common language that helps them to face one of the most defying challenges of international legal practice: how to bridge the cultural gaps between lawyers educated in different legal traditions.
Ernesto Vargas Weil
LL.M. New York University, International Finance and Development Fellowship ‘14. LL.B. University of Chile. Partner at Anriquez Novoa Abogados (Santiago, Chile). Instructor at the Private Law Department of the University of Chile. He attended the 2016 IBA Annual Conference thanks to the “IBA Scholarship Programme for Young Lawyers from Developing Countries”.
[1] See Max Weber, Economy and Society. Berkley, California: University of California Press, 1978, pp. 784-808.
[2] http://www.ibanet.org/About_the_IBA/About_the_IBA.aspx.
[3] IBA 2016 Annual Conference of the International Bar Association Final Programme, available at http://www.int-bar.org/Conferences/conf664/binary/Washington-2016-final-prog-FULL-FOR-WEB-14-SEPT.pdf.
[4] See Roy Goode, Herbert Kronke and Ewan Mc Kendrick. Transnational Commercial Law: Text, Cases, and Materials. Oxford, UK: Oxford University Press, 2007, p. 264. For a classic example, see Tribunale di Vigevano, Italy, 12 July 2000 (Rheinland Versicherungen v. Atlarex), English translation available at http://cisgw3.law.pace.edu/cases/000712i3.html.
[5] E.g., on the familiarity of common law lawyers with the CISG, see Ingeborg Schwenzer and Christopher Kee, Global Sales Law – Theory and Practice”, in: Schwenzer and Spangolo (Eds.). Towards Uniformity. The Second Annual MAA Schlechtriem CISG Conference, March 13 2010, Hong Kong. International Commerce and Arbitration, vol. 8. The Hague, The Netherlands: Eleven International Publishing, 2011, p. 158.
[6] See Ingeborg Schwenzer and Pasacal Hachem. The CISG – Successes and Pitfalls. 57 American Journal of Comparative Law (Spring 2009), pp. 464 and Ulrich Magnus, Sales of Good, International (Uniform Law), in: Jürgen Basedow, Klaus J. Hopt and Reinhard Zimmermann (eds.), The Max Plank Encyclopedia of European Private Law. Oxford; New York: Oxford University Press, 2012, vol. II, p.1508; Peter Mankowski, Peter. Artikel 6 CISG und Abbedingung der CISG, in Festschrift für Ulrich Magnus zum 70. Geburtstag. Munich, Germany: Sellier European Law Publishers GmbH, 2014, pp. 257, 258.
[7] See José Antonio Moreno Rodriguez, Contracts and Non-State Law in Latin America. Uniform Law Review. NS – Vol XVI, 2011, p. 877.